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PEOPLE v. CRUZ

23 A.D.3d 577 (2005)

805 N.Y.S.2d 93

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NELSON CRUZ, Appellant.

Appellate Division of the Supreme Court of the State of New York, Second Department.

November 21, 2005.

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 N.Y. 208

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