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TRIAL COURT MAY NOT SET ASIDE THE VERDICT PURSUANT TO CPL 330.30 ON A GROUND WHICH DOES NOT REQUIRE REVERSAL AS A MATTER OF LAW–HERE THE ALLEGED FACTUAL INCONSISTENCY BETWEEN THE CONVICTION OF ENDANGERING THE WELFARE OF A CHILD AND THE ACQUITTALS ON ALL THE OTHER SEXUAL-OFFENSE COUNTS (SECOND DEPT).

The Second Department, reversing County Court on the People’s appeal, in a full-fledged opinion by Justice Chambers, determined the verdict should not have been set aside based upon an alleged inconsistency between the conviction on one count and the acquittals on all other counts:

This appeal by the People and cross appeal by the defendant presents a rare opportunity to consider the circumstances under which a trial court, in reviewing the record on a motion pursuant to CPL 330.30(1) to determine whether a conviction on one count is supported by legally sufficient evidence, may consider a jury’s factually inconsistent acquittal on another count.

The defendant was charged with two counts of rape in the third degree (Penal Law § 130.25[2]), three counts of criminal sexual act in the third degree (Penal Law § 130.40[2]), and two counts of endangering the welfare of a child (Penal Law § 260.10[1]). * * *

The jury returned a verdict of guilty on count six [endangering the welfare of a child] and acquitted the defendant of all other charges. * * *

… [T]he defendant contends that a factual inconsistency in the verdict may … , under appropriate circumstances, provide grounds for a reviewing court to “consider a jury’s acquittal on one count in reviewing the record to determine if a factually inconsistent conviction on another count is supported by legally sufficient evidence” … .  …  [T]here is some support in the case law for the defendant’s contention—at least within the context of a direct appeal from the judgment of conviction, where this Court has both a unique power of factual review … as well as the discretionary authority, in the interest of justice, to reach unpreserved errors that deprived the defendant of a fair trial … . However, we now explicitly hold that a trial court determining a motion pursuant to CPL 330.30 lacks the power to overturn a verdict on this ground where, as here, the contention does not present an issue that “would require a reversal or modification of the judgment as a matter of law by an appellate court” (CPL 330.30[1] …). People v Taylor, 2020 NY Slip Op 04790, Second Dept 8-26-20

 

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