Later courts went against this
Overruled in part by The People v. Clifford Jones, 24 N.Y.3d 623 (2014)
343 N.E.2d 719 (N.Y. Ct. App. 1975), overruled on other grounds by People v. Jones, 26 N.E.3d 754
The opinion
Cooke, J.
(concurring). While I concur in the majority opinion affirming the. Appellate Division’s order, which affirmed an order of the Supreme Court, Queens County, denying defendant’s motion to vacate a judgment of conviction and for a new trial upon the ground of newly discovered evidence, I do not retreat in any respect, except for the due regard which must be accorded a prevailing opinion, from the position taken and the dissent which I authored and in which I urged affirmance of an earlier order of the Appellate Division which reversed the judgment of conviction as to the manslaughter count, on the law, and granted a new trial on that count (see People v Crimmins, 36 NY2d 230 , 243 et seq.). The issues on this appeal and that one are not the same. Here, even if it were reviewable, it cannot be said as a matter of law that the court, in denying the application to vacate the judgment based on newly discovered evidence, abused its discretion.