PEOPLE v. SERRATA (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered February 6, 1996, convicting him of criminal possession of a controlled substance in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant moved pursuant to CPL 330.30 to set aside the verdict on the ground of newly discovered evidence, consisting of a written statement from the informant who recanted the information used to obtain a search warrant.   However, as newly discovered evidence must do more than merely impeach or contradict evidence introduced at the trial and recantation evidence is inherently unreliable, the trial court did not err in denying the motion without a hearing (see, People v. Salemi, 309 N.Y. 208, 128 N.E.2d 377, cert. denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827;  People v. Cheng, 232 A.D.2d 651, 648 N.Y.S.2d 1011;  People v. Pineda, 207 A.D.2d 915, 616 N.Y.S.2d 660;  People v. Legette, 153 A.D.2d 760, 545 N.Y.S.2d 296).

 Viewing the representation provided by defense counsel “in its entirety, in conjunction with the evidence, the law, and the circumstances of the case” (People v. Williams, 247 A.D.2d 416, 668 N.Y.S.2d 636;  see also, People v. Satterfield, 66 N.Y.2d 796, 497 N.Y.S.2d 903, 488 N.E.2d 834;  People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Glover, 165 A.D.2d 880, 560 N.Y.S.2d 350), the defendant was not deprived of the effective assistance of counsel.

The defendant's remaining contentions are unpreserved for appellate review (see, CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Johnson, 245 A.D.2d 570, 667 N.Y.S.2d 61;  People v. Wheeler, 242 A.D.2d 310, 661 N.Y.S.2d 972).

MEMORANDUM BY THE COURT.