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People v. Mendez

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 2, 2010

THE PEOPLE, ETC., RESPONDENT,
v.
RICARDO MENDEZ, APPELLANT.

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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

JOSEPH COVELLO, J.P., FRED T. SANTUCCI, HOWARD MILLER and RANDALL T. ENG, JJ.

(Ind. No. 7712/01)

DECISION & ORDER

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 NY2d 208, 212; People v Crimmins, 38 NY2d 407, 419; People v Perkins, 234 AD2d 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 AD2d at 482).

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

20100302

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