
    The People of the State of New York, Respondent, v Tank Smith, Appellant.
    [657 NYS2d 955]
   —Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered November 17, 1994, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony and the denial, after a hearing, of the defendant’s motion to set aside the verdict and for a new trial on the ground of newly discovered evidence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the court did not abuse its discretion in denying his motion to set aside the verdict (see, People v Suarez, 98 AD2d 678). Specifically, the defendant failed to demonstrate that "new evidence has been discovered since the trial which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such a character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 330.30 [3]).

The defendant’s remaining contentions are without merit. Rosenblatt, J. P., Miller, Thompson and Friedmann, JJ., concur.  