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

The PEOPLE, etc., respondent, v. Steven MUSGROVE, appellant.

Decided: May 24, 1999

GUY JAMES MANGANO, P.J., WILLIAM D. FRIEDMANN, LEO F. McGINITY and SANDRA J. FEUERSTEIN, JJ. Michael O'Brien, Garden City, N.Y., for appellant. James M. Catterson, Jr., District Attorney, Riverhead, N.Y. (John J. Ribeiro of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered April 16, 1998, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The Supreme Court did not err in denying the defendant's motion to reopen the Wade hearing.   CPL 710.40(4) provides that a court may permit a defendant to renew his motion to suppress evidence if it is satisfied, upon the defendant's showing, that new facts have been discovered “which * * * could not have [been] discovered with reasonable diligence before the determination of the motion”.   The defendant concedes that he had a copy of the photographic array of which he now complains prior to the Wade hearing.   His belated discovery that the array contained two identical photographs of another individual could have been discovered with reasonable diligence prior to the court's determination (see, People v. Washington, 238 A.D.2d 43, 47-48, 671 N.Y.S.2d 439;  People v. Young, 233 A.D.2d 537, 538, 650 N.Y.S.2d 767).

The defendant's contention that the evidence was legally insufficient to support his conviction is 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. Williams, 187 A.D.2d 547, 589 N.Y.S.2d 604).   In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

The sentence imposed upon the defendant was not excessive (see, People v. Nicholson, 231 A.D.2d 533, 534, 648 N.Y.S.2d 33;  People v. Suitte, 90 A.D.2d 80, 86-87, 455 N.Y.S.2d 675).

The defendant's remaining contention is without merit.


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