Opinion
December 21, 1990
Appeal from the Supreme Court, Onondaga County, Gorman, J.
Present — Denman, J.P., Boomer, Pine, Davis and Lowery, JJ.
Order unanimously reversed on the law, motion to renew and to suppress denied and matter remitted to Supreme Court for further proceedings on the indictment. Memorandum: Supreme Court erred in granting defendant's motion to reopen the suppression hearing. The court may grant a motion to renew a suppression motion "upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion" (CPL 710.40). Here, the additional facts relied upon by defendant in support of his motion were within his knowledge at the time of the first hearing and, thus, did not constitute newly discovered evidence. On the motion to renew, defendant submitted affidavits from two eyewitnesses who gave an account of defendant's arrest that was contrary to the account testified to by the arresting officers at the first hearing. Although he had not testified at the first hearing, defendant testified at the new hearing to the same account of the arrest as given by the two eyewitnesses. Because defendant had knowledge of the facts surrounding his arrest, those facts may not be considered "additional pertinent facts * * * discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion" (CPL 710.40). Moreover, the record reveals that defendant did not make any attempt to locate eyewitnesses to his arrest until after the first decision on the motion was rendered and after he had retained a new attorney. Thus, he made no showing that he could not have obtained the testimony of the eyewitnesses at the first hearing had he made a diligent effort to locate witnesses before the first hearing (see, People v. Latella, 112 A.D.2d 321, 323).