The People of the State of New York, Respondent, v. John Lane, Appellant

The People of the State of New York, Respondent, v John Lane, Appellant. [622 NYS2d 590] [MAJORITY] —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered September 25, 1990, convicting him of murder in the second degree (two counts), criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree (two counts), and assault in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]). The trial court properly denied the defendant’s motion to set aside the verdict pursuant to CPL 330.30 (3) which was based solely on an affidavit of a witness recanting his trial testimony. To succeed under CPL 330.30, a defendant must show, by a fair preponderance of the evidence, that the newly-discovered evidence, had it been produced at trial, would probably have resulted in a different verdict. We find that it is not "probable” that a different result would have been reached had this affidavit been submitted earlier. As the defendant failed to satisfy his burden in establishing that this affidavit constituted newly-discovered evidence warranting a new trial, the trial court did not err in denying the defendant’s motion for a new trial (see, CPL 330.30 [3]; People v Gomezgil, 135 AD2d 561, 562). The defendant’s sentence is neither harsh nor excessive (see, People v Suitte, 90 AD2d 80). The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Miller, J. P., O’Brien, Santucci and Florio, JJ., concur.