The People of the State of New York, Respondent, v. Ricardo Mendez, Appellant

The People of the State of New York, Respondent, v Ricardo Mendez, Appellant. [894 NYS2d 901] [MAJORITY] Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Mangano, Jr., J.), dated October 17, 2007, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered March 23, 2007, convicting him of robbery in the first degree (three counts), robbery in the second degree (three counts), and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. Ordered that the order is affirmed. The Supreme Court providently exercised its discretion in denying, without a hearing, the defendant’s motion to vacate the judgment of conviction on the basis of certain allegedly newly-discovered evidence (see People v Baxley, 84 NY2d 208, 212 [1994]; People v Crimmins, 38 NY2d 407, 419 [1975]; People v Perkins, 234 AD2d 482 [1996]). The affidavit from a fellow inmate that the defendant submitted merely contradicted the evidence adduced at the trial, and was not “of such character as to create a probability that had [it] been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10 [1] [g]; see People v Cruz, 23 AD3d 577 [2005]; People v Perkins, 234 AD2d at 482). Covello, J.P., Santucci, Miller and Eng, JJ., concur.