Opinion
July 25, 1988
Appeal from the Supreme Court, Queens County (Gallagher, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the trial court did not abuse its discretion in denying his motion to set aside the verdict on the ground of newly discovered evidence (see, CPL 330.30). The defendant was aware of the identity of the witness whom he purportedly desired to call on his behalf and the subject matter of his testimony. On the day this witness was to testify, he was for the first time absent from the courtroom. The defendant rested following the close of the People's evidence without placing a comment on the record relevant to the proposed witness's testimony or seeking an adjournment to attempt to secure this witness's presence at trial. Under such circumstances it cannot be said that the defendant established by a preponderance of credible evidence that despite the exercise of due diligence the evidence could not have been produced at trial (see, People v. Davis, 43 N.Y.2d 17, 28, cert denied 435 U.S. 998, rearg dismissed 61 N.Y.2d 670; see, People v. Wadley, 108 A.D.2d 943; People v. Santiago, 88 A.D.2d 665). Furthermore, it is clear that this evidence was neither newly discovered nor of such character as to create the probability of a more favorable outcome for the defendant (see, People v. Rivera, 108 A.D.2d 829, 830; People v. Donald, 107 A.D.2d 818).
We have reviewed the defendant's remaining contention and find it to be unpreserved for appellate review (see, CPL 470.05; People v. Lipton, 54 N.Y.2d 340, 351; People v. Thomas, 50 N.Y.2d 467, 471-473), and, in any event, without merit. Kunzeman, J.P., Weinstein, Eiber and Spatt, JJ., concur.