People v. Gurley

—Appeal by the People from an order of the Supreme Court, Kings County (Rappaport, J.), dated May 7, 1992, which granted the defendant’s motion pursuant to CPL 440.10 to vacate his judgment of conviction on the ground of newly discovered evidence and ordered a new trial.

Ordered that the order is affirmed.

After a jury trial in 1972, the defendant was convicted, inter alia, of murder. According to the People, while standing on the street, the defendant, aiming from his waist, shot the victim who was standing upon the stoop of a building, which *535would cause an upward track of the bullet into the…