
    The People of the State of New York, Appellant, v Wesley Matthew, Respondent.
    [711 NYS2d 35]
   —Appeal by the People from (1) a decision of the Supreme Court, Kings County (Mason, J.), dated May 3, 1999, and (2) an order of the same court, entered July 28, 1999, which, upon the decision, granted the defendant’s motion pursuant to CPL 330.30 (3) to set aside a jury verdict convicting him of sexual abuse in the first degree and sexual abuse in the third degree, and ordered a new trial.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the order is reversed, on the law, the motion is denied, the verdict is reinstated, and the matter is remitted to the Supreme Court, Kings County, for the imposition of sentence.

The trial court erred in granting the defendant’s motion to set aside the jury verdict pursuant to CPL 330.30 (3). In support of his motion, the defendant submitted the affidavit of a witness, who was the mother of his child and the complainant’s sister, stating that the defendant was not in the complainant’s apartment on March 6, 1998, when the abuse allegedly occurred. However, this newly-discovered evidence could have been produced at trial had the defendant exercised due diligence. The indictment specifically alleged that the abuse occurred on March 6, 1998 (see, People v Saunders, 244 AD2d 580), and the defendant and the witness were in contact before trial (see, People v Johnson, 208 AD2d 562).

Moreover, the allegations contained in the witness’s affidavit, as well as the unsupported allegations contained in the defense counsel’s affirmation in support of the motion, were not of such a nature to create the probability of a more favorable outcome (see, People v Lane, 212 AD2d 637). Accordingly, as the prosecution’s arguments are preserved, the order is reversed and the motion to set aside the verdict denied. S. Miller, J. P., Altman, H. Miller and Schmidt, JJ., concur.  