The People, etc., respondent, v. Ricardo Mendez, appellant. (2010)

Argued-January 12, 2010

DECISION & ORDER

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Mangano, Jr., J.), dated October 17, 2007, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered March 23, 2007, convicting him of robbery in the first degree (three counts), robbery in the second degree (three counts), and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED that the order is affirmed.

The Supreme Court providently exercised its discretion in denying, without a hearing, the defendant's motion to vacate the judgment of conviction on the basis of certain allegedly newly-discovered evidence (see People v. Baxley, 84 N.Y.2d 208, 212;  People v. Crimmins, 38 N.Y.2d 407, 419;  People v. Perkins, 234 A.D.2d 482).   The affidavit from a fellow inmate that the defendant submitted merely contradicted the evidence adduced at the trial, and was not “of such character as to create a probability that had [it] been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10[1][g];  see People v. Cruz, 23 AD3d 577;  People v. Perkins, 234 A.D.2d at 482).

COVELLO, J.P., SANTUCCI, MILLER and ENG, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court