Weiss, P. J. (concurring in part and dissenting in part). I fully concur with the majority in its holding that the judgment convicting defendant of the crimes of murder in the second degree, robbery in the first degree and burglary in the first degree should be affirmed.
It is with the decision to reverse the order denying defendant’s CPL 440.10 motion to vacate the judgment of conviction that I disagree and respectfully dissent. My reasons are twofold. First, I do not agree that the testimony of Elaine Gagnon was of such nature as would insure "a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10 [1] [g]). Gagnon was a 14-year-old girl at the time the crimes were committed. Testimony she gave four years later at Palmer’s retrial was replete with inconsistences, errors, vagaries and speculation. She was uncertain whether the events occurred on August 8, 9, 10, 11, 12 or 13, 1984. She and her three companions had been driving around Rensselaer County from 2:00 p.m. until after darkness drinking three cases of beer and smoking marihuana all afternoon. Her testimony contradicted that of other witnesses. For example, Gagnon said she saw blood on the clothes of Joe Zakrzewski and Trisha Zakrzewski after they came out of the victim’s house, yet not one other witness testified to the presence of blood, including the Medical Examiner, who testified that the victim had not bled. She said she saw the victim fully clothed tied to a chair, yet the body was found completely naked in his bed. She said he asked her to help him, yet he was found completely gagged. She had been convicted of crimes originating in shoplifting and was on probation at the time. She said she was under the influence of alcohol even when she ultimately disclosed the story to her attorney some four years later, after Paul Palmer’s conviction.
In sum, I view her testimony to be wholly unworthy of belief, lacking in credibility and more likely the machinations of a young girl, herself already a mother at age 14, who was intoxicated and hallucinatory from marihuana at the time she allegedly was present on the day of the crimes. Moreover, it is *1105virtually impossible to rule out her motivation to help defendant, whom she said she knew and liked, or did not know, depending on which attorney was examining her. Moreover, County Court correctly held that Gagnon’s testimony was cumulative of the evidence already given pertaining to the alleged involvement of the Abbott family and the Zakrzewskis in the crimes, all of which the jury had before it and rejected (see, People v Seneci, 133 AD2d 432, lv denied 70 NY2d 1011).
1 similarly am unable to accept the argument that the "newly discovered evidence” was presented with due diligence. Gagnon’s testimony was a matter of public record and certainly publicized in the media following Palmer’s retrial in November 1988. The record shows that Eugene Grimmick, defendant’s present counsel who made the subject motion, was himself in court during Palmer’s retrial and, in fact, was about to be appointed to represent Gagnon during that trial. At that very time, he declined the appointment because he had already been assigned as appellate counsel to represent defendant. In addition, daily transcripts including Gagnon’s testimony on Palmer’s retrial had been prepared and were available to him. Grimmick already had accepted the assignment and had to be aware of the need to use Gagnon’s testimony on behalf of this defendant. Defendant was under no disadvantage in his ability to discover or document Gag-non’s testimony (see, People v Hildenbrandt, 125 AD2d 819, lv denied 69 NY2d 881; People v Latella, 112 AD2d 321, 323). Yet, despite all this, Grimmick failed to make the instant CPL 440.10 motion until December 1990, two full years later. I find the excuses offered unacceptable and would hold that defendant has failed to satisfy the due diligence requirement in the statute (see, People v Fielder, 154 AD2d 388). I would therefore affirm the order denying defendant’s CPL 440.10 motion as well as the underlying judgment of conviction.
Ordered that the judgment is affirmed.
Ordered that the order is reversed, on the law, motion granted, judgment of conviction vacated and matter remitted to the County Court of Rensselaer County for a new trial.