People v. Aulla

—Appeal by the defen [498] dant from a judgment of the Supreme Court, Queens County (Fisher, J.), rendered February 24, 1993, convicting him of assault in the second degree, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The sole issue raised on this appeal is the propriety of the denial, after a hearing, of the defendant’s motion pursuant to CPL 330.30 (3) for a new trial on the ground of newly discovered evidence. Contrary to the defendant’s contentions, the record supports the trial court’s denial of the motion. The defendant has failed to establish by a preponderance of the evidence that the witnesses he offered in support of his motion could not have been discovered prior to the trial (see, People v Priori, 164 NY 459, 471-472; People v Barrero, 137 AD2d 759), that the evidence was not cumulative (see, People v Seneci, 133 AD2d 432, 433), and that the newly discovered evidence would probably, not merely possibly, change the result if a retrial were granted (see, People v Penoyer, 135 AD2d 42, 44, affd 72 NY2d 936; People v Salemi, 309 NY 208, 216, cert denied 350 US 950; CPL 330.30 [3]; 330.40 [2] [g]). Lawrence, J. P., O’Brien, Friedmann and Krausman, JJ., concur.