People v Nelson Cruz

People v Cruz 2005 NY Slip Op 09002 [23 AD3d 577] November 21, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

The People of the State of New York, Respondent,
v
Nelson Cruz, Appellant.

—[*1]

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 NY 208, 216 [1955], cert denied 350 US 950 [1956]; People v Cabrera, 1 AD3d 375 [2003]; People v Latella, 112 AD2d 321 [1985]).

Further, the defendant was provided with meaningful representation (see People v Benevento, 91 NY2d 708 [1998]).

The defendant's remaining contentions are without merit (see CPL 440.10 [2] [c]; see [*2]also People v Favor, 82 NY2d 254, 260-261 [1993]). Florio, J.P., Krausman, Skelos and Covello, JJ., concur.