Opinion
October 29, 1992
Appeal from the County Court of Columbia County (Zittell, J.).
County Court properly denied defendant's CPL 440.10 motion without a hearing. Defendant argues that County Court had no jurisdiction to amend its order erroneously dismissing the ninth count of the indictment against defendant. This issue was raised and decided on defendant's direct appeal to this court and, accordingly, may not form the basis for a posttrial motion (see, CPL 440.10 [a]; People v Skinner, 154 A.D.2d 216, lv denied 76 N.Y.2d 796). As to defendant's argument based upon newly discovered evidence of prosecutorial misconduct in failing to disclose what defendant characterizes as exculpatory material, we find that transcripts and evidence pertaining to the trial of defendant's codefendant and other documents made available to defendant before his trial contained that evidence or sufficient information to allow its discovery with due diligence (see, People v Friedgood, 58 N.Y.2d 467; cf., People v Nuness, 151 A.D.2d 987, lv denied 74 N.Y.2d 816). Finally, defendant's contention that police officers conspired to concoct an alibi for one witness and conceal certain evidence from the People is purely speculative and unsupported by the record (see, People v Brown, 56 N.Y.2d 242, 246-247; People v Britt, 148 A.D.2d 911).
Mikoll, J.P., Yesawich Jr., Mercure, Crew III and Casey, JJ., concur. Ordered that the order is affirmed.