
    The People of the State of New York, Respondent, v Craig Mossop, Appellant.
    [596 NYS2d 719]
   —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Brill, J.), rendered September 6, 1990, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The court did not improvidently exercise its discretion in denying the defendant’s motion for a new trial based upon newly discovered evidence. The defendant did not demonstrate by a fair preponderance of the evidence that the allegedly newly discovered evidence would probably change the result if a new trial were granted or that the evidence could not have been discovered before trial by the exercise of due diligence (see, CPL 330.30 [3]; People v Salemi, 309 NY 208, cert denied 350 US 950; People v Mendez, 147 AD2d 712). Furthermore, because the court was able to make its determination on the basis of the motion papers, it did not err in doing so without a hearing (see, CPL 330.40 [2] [c], [e] [ii]). Bracken, J. P., Balletta, Eiber and Santucci, JJ., concur.  