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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Dwight JONES, Appellant.  (Appeal No. 1.)

Decided: December 31, 1998

Present:  GREEN, J.P., WISNER, PIGOTT, CALLAHAN and FALLON, JJ. Donald Thompson, Rochester, for Appellant. Howard R. Relin by Robert Mastrocola, Rochester, for Respondent.

 County Court properly refused to admit into evidence a statement made by defendant's brother.   The court properly determined that the declarant was not aware that his statement was against his penal interest and thus that the statement was not sufficiently reliable to be admissible under that exception to the hearsay rule (see, People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612;  see also, People v. Shortridge, 65 N.Y.2d 309, 312, 491 N.Y.S.2d 298, 480 N.E.2d 1080).   The court did not abuse its discretion in denying defendant's CPL 440.10 motion to vacate the judgment based on evidence that was allegedly discovered since the entry of the judgment (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. Balan, 107 A.D.2d 811, 814-815, 484 N.Y.S.2d 648).   The alleged new evidence is not “such as will probably change the result if a new trial is granted” (People v. Salemi, supra, at 216, 128 N.E.2d 377).

The court properly denied defendant's motion to suppress identification testimony.   The People met their initial burden of establishing the reasonableness of the police conduct and lack of suggestiveness, and defendant failed in response to meet his burden of establishing that the identification procedure was unduly suggestive (see, People v. Hyde, 240 A.D.2d 849, 850, 659 N.Y.S.2d 328, lv. denied 91 N.Y.2d 874, 668 N.Y.S.2d 573, 691 N.E.2d 645).

 Because the People's case was based on both direct and circumstantial evidence of defendant's guilt, the court did not err in refusing to give a moral certainty charge to the jury (see, People v. Daddona, 81 N.Y.2d 990, 599 N.Y.S.2d 530, 615 N.E.2d 1014;  People v. Barnes, 50 N.Y.2d 375, 379-380, 429 N.Y.S.2d 178, 406 N.E.2d 1071).   The interested witness charge given by the court adequately conveyed the proper standard and was properly balanced (see, People v. Bowden, 198 A.D.2d 39, 40, 603 N.Y.S.2d 448).   Finally, there is no merit to the contention that defendant was deprived of a fair trial by prosecutorial misconduct (see generally, People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885).

Judgment unanimously affirmed.