People v. Festa

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dufficy, J.), rendered November 7, 1984, convicting him of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court properly exercised its discretion in summarily denying the defendant’s motion to set aside the verdict pursuant to CPL 330.30 (3) on the ground of newly discovered evidence inasmuch as the application neither was in writing and supported by moving papers (CPL 330.40 [2] [a]) nor demonstrated that the evidence "could not have been produced by the defendant at the trial even with due diligence on his part” (CPL 330.30 [3]; see, People v Heckstall, 76 AD2d 913). Mangano, J. P., Thompson, Kunzeman and Sullivan, JJ., concur.