PEOPLE v. MATTHEW

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,

ORDERED that the order is reversed, on the law, the motion is denied, the verdict is reinstated, and the matter is remitted to the Supreme Court, Kings County, for the imposition of sentence.

The trial court erred in granting the defendant's motion to set aside the jury verdict pursuant to CPL 330.30(3). In support of his motion, the defendant submitted the affidavit of a witness, who was the mother of his child and the complainant's sister, stating that the defendant was not in the complainant's apartment on March 6, 1998, when the abuse allegedly occurred. However, this newly-discovered evidence could have been produced at trial had the defendant exercised due diligence. The indictment specifically alleged that the abuse occurred on March 6, 1998 (see, People v. Saunders, 244 A.D.2d 580), and the defendant and the witness were in contact before trial (see, People v. Johnson, 208 A.D.2d 562).

Moreover, the allegations contained in the witness's affidavit, as well as the unsupported allegations contained in the defense counsel's affirmation in support of the motion, were not of such a nature to create the probability of a more favorable outcome (see, People v. Lane, 212 A.D.2d 637). Accordingly, as the prosecution's arguments are preserved, the order is reversed and the motion to set aside the verdict denied.