CPL 330.30 Motions Based Upon Matters Outside the Record Properly Denied/Although Not the Case Here, Such Motions Might Be Deemed Premature CPL 440.10 Motions and, As Such, Considered by the Trial Court/Concurring/Dissenting Opinions Disagreed About Whether the Persistent Felony Offender Statute, Which Allows the Judge to Exercise Discretion in Applying the Statute, Violates Apprendi v New Jersey (Requiring Facts Upon Which an Enhanced Sentence May Be Based to Be Decided by the Jury Under a Beyond a Reasonable Doubt Standard)

The Court of Appeals, in a brief memorandum decision, determined that motions to set aside the verdict (Criminal Procedure Law [CPL] 330.30) made in two the cases before the court were properly denied because they raised issues which were outside the record. The court further determined that the persistent felony offender statute (PFO) at issue in one of the cases was properly applied. The court noted that, in some situations, 330.30 motions might be deemed (premature) motions to vacate the conviction (CPL 440.10) and considered by the trial court in that context, but no attempt to invoke CPL 440.10 was made here.  Concurring and dissenting opinions dealt with whether the persistent felony offender statute (PFO) violated Apprendi v New Jersey, 530 US 466 (2000), because factual findings supporting an enhanced sentence are made by the judge, not the jury, and whether the motion to set aside the verdict on the ground that the courtroom was closed to the public for part of the trial should have been considered as a (premature) CPL 440.10 motion to set aside the conviction. People v Giles, 2014 NY Slip Op 08871, CtApp 12-18-14