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People v. Rembert

190 A.D.2d 829 Court N.Y. App. Div. Decision date 1993-02-16 English

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p. 829
The People of the State of New York, Respondent, v Eddie Rembert, Appellant.

— Appeal by defendant from a judgment of the County Court, Suffolk County (Vaughn, J.), rendered February 27, 1991, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s primary contention is that the County Court erred in failing to direct an evidentiary hearing with respect to his purported motion to set aside the verdict pursuant to CPL 330.30 (3). The defendant’s purported motion consisted of an oral application made immediately prior to the pronouncement of sentence (but see, CPL 330.40 [2] [a] [motion premised on CPL 330.30 (3) must be in writing]). The defendant’s attorney claimed that he had recently succeeded in locating a "homeless” woman who, he asserted, would be willing to testify that the defendant had in fact not participated in the narcotics transaction of which he was later convicted. The County Court denied this application on the basis of its conclusion that the defendant had known of the existence of this witness earlier, so that her prospective testimony could not properly be considered as newly discovered evidence.

p. 830
Considering all the circumstances of this case, we conclude that the County Court committed no error, and did not improvidently exercise its discretion, when it declined to adjourn the sentencing proceedings or to order an evidentiary hearing with respect to defense counsel’s application (see generally, People v Priori, 164 NY 459 ; People v Copeland, 185 AD2d 280 ; People v Fielder, 154 AD2d 388 ; People v Zambrano, 142 AD2d 744 ; People v Barrero, 137 AD2d 759 ). The defense counsel never sought an adjournment during trial to secure this witness’s presence (see, People v Zambrana, supra; People v Hughes, 136 AD2d 916 ).

We have examined the defendant’s remaining contentions and find them to be without merit. Mangano, P. J., Bracken, Sullivan and Balletta, JJ., concur.

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