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Verdict May Not Be Set Aside Pursuant to Criminal Procedure Law 330.30 On a (Waivable) Ground Not Preserved by Objection at Trial

The Second Department determined Supreme Court should not have set aside the verdict pursuant to a CPL 330.30 motion on a ground which was not preserved by an objection.  Supreme Court set aside the assault second conviction on the ground that the indictment, which charged assault first, was improperly amended during trial to assault second.  Because the defendant did not object to the amendment, the issue could not be the basis for setting aside the verdict pursuant to CPL 330.30:

In considering a motion to set aside or modify a verdict pursuant to CPL 330.30(1), a trial court may only consider questions of law, not fact … . Moreover, a trial court may only consider claims of legal error under CPL 330.30(1) where those claims are properly preserved for appellate review … .

Contrary to the Supreme Court’s determination, the alleged amendment of the indictment was not a nonwaivable defect, and the defendant was required to make a timely objection at trial to preserve, for the Supreme Court’s consideration, a claim pursuant to CPL 330.30(1) that the indictment was impermissibly amended … . As the defendant failed to object at trial, he “waived” any challenge to the reduction of the count alleging assault in the first degree …, and the Supreme Court was without authority to set aside the verdict on that ground … . People v Davidson, 2014 NY Slip Op 08346, 2nd Dept 11-26-14

 

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