
    The People of the State of New York, Respondent, v Jarrod A. Brewer, Appellant.
    [855 NYS2d 788]
   Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered April 10, 2003. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the second degree (former § 265.03 [2]). Defendant failed to preserve for our review his contention that County Court erred in failing to instruct the jury on circumstantial evidence as part of its charge on evidence concerning the consciousness of guilt (see CPL 470.05 [2]; People v Lopez, 28 AD3d 234, 235 [2006], lv denied 7 NY3d 758 [2006]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). The court properly denied the motion of defendant to set aside the verdict pursuant to CPL 330.30 (3) without a hearing inasmuch as “his motion papers failed to contain sworn allegations of fact . . . and the purported newly discovered evidence merely tended to impeach or discredit trial testimony” (People v Ayers, 276 AD2d 392 [2000], lv denied 95 NY2d 960 [2000]). Finally, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Present—Scudder, P.J., Hurlbutt, Centra, Green and Gorski, JJ.  