PEOPLE v. BREWER (2008)

Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (former § 265.03[2] ).   Defendant failed to preserve for our review his contention that County Court erred in failing to instruct the jury on circumstantial evidence as part of its charge on evidence concerning the consciousness of guilt (see CPL 470.05[2];  People v. Lopez, 28 A.D.3d 234, 235, 812 N.Y.S.2d 99, lv. denied 7 N.Y.3d 758, 819 N.Y.S.2d 884, 853 N.E.2d 255), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   The court properly denied the motion of defendant to set aside the verdict pursuant to CPL 330.30(3) without a hearing inasmuch as “his motion papers failed to contain sworn allegations of fact ․ and the purported newly discovered evidence merely tended to impeach or discredit trial testimony” (People v. Ayers, 276 A.D.2d 392, 715 N.Y.S.2d 634, lv. denied 95 N.Y.2d 960, 722 N.Y.S.2d 477, 745 N.E.2d 397).   Finally, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: