PEOPLE v. CRUZ (2005)

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Kreindler, J.), dated March 5, 2003, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered March 12, 1999, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the order is affirmed.

The Supreme Court properly exercised its discretion in denying, without a hearing, the defendant's motion to vacate a judgment of conviction.   Not only did the defendant fail to make a showing of due diligence with respect to his claim of newly discovered evidence, but the evidence was not such that it would probably change the result in the event a new trial was granted (see People v. Salemi, 309 N.Y. 208, 216, 128 N.E.2d 377, cert. denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827;  People v. Cabrera, 1 A.D.3d 375, 766 N.Y.S.2d 586;  People v. Latella, 112 A.D.2d 321, 491 N.Y.S.2d 771).

Further, the defendant was provided with meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584).

The defendant's remaining contentions are without merit (see CPL 440.10[2] [c];  see also People v. Favor, 82 N.Y.2d 254, 260-261, 604 N.Y.S.2d 494, 624 N.E.2d 631).