Opinion
February 2, 1996
Appeal from the Monroe County Court, Marks, J.
Present — Green, J.P., Pine, Fallon, Callahan and Davis, JJ.
Order unanimously reversed on the law and matter remitted to Monroe County Court for further proceedings in accordance with the following Memorandum: Defendant contends that County Court erred in denying without a hearing his motion to vacate a conviction pursuant to CPL 440.10. We agree. The proffered testimony of the codefendant, who did not testify at trial and now seeks to exculpate defendant, constitutes newly discovered evidence within the meaning of CPL 440.10 (g) (see, People v Beach, 186 A.D.2d 935). Because that evidence was not "conclusively refuted by unquestionable documentary proof" (CPL 440.30 [c]) and "it cannot be said that `there is no reasonable possibility that [an allegation of fact essential to support the motion] is true'" (People v. Beach, supra, at 936), defendant is entitled to a hearing to enable the court to assess the codefendant's credibility (see, CPL 440.30, [5]). Further, there is no evidence to support the People's contention that defendant failed to exercise due diligence in bringing the motion after discovery of the evidence.