You are here: / / A MOTION TO SET ASIDE A VERDICT PURSUANT TO CPL 330.30 (1) MUST BE BASED...
,

A MOTION TO SET ASIDE A VERDICT PURSUANT TO CPL 330.30 (1) MUST BE BASED UPON MATTERS IN THE RECORD WHICH HAVE BEEN PRESERVED FOR APPEAL; A MOTION TO SET ASIDE A VERDICT PURSUANT TO CPL 330.30 (2) CAN BE BASED UPON JUROR MISCONDUCT OF WHICH THE DEFENDANT WAS NOT AWARE PRIOR TO THE VERDICT; BUT HERE THE DEFENSE WAS AWARE OF THE ALLEGED MISCONDUCT PRIOR TO THE VERDICT AND DID NOT OBJECT (FOURTH DEPT).

The Fourth Department explained that a motion to set aside a verdict pursuant to CPL 330.30 (1) or (2) cannot be based upon an issue the defense could have addressed (but did not) prior to the verdict. Although CPL 330.30 (2) allows a motion to set aside the verdict based upon juror conduct of which the defendant was not aware prior to the verdict, here the defense was aware of the alleged juror conduct:

” ‘A trial court’s authority to set aside a verdict under CPL 330.30 (1) is limited to grounds which, if raised on appeal, would require reversal as a matter of law . . . Accordingly, only a claim of error that is properly preserved for appellate review may serve as the basis to set aside the verdict’ ” … . Here, despite being afforded an opportunity to object or seek further relief when the court brought the issue to the parties’ attention during deliberations, defendant did not do so and thus failed to preserve his claim … .. The court therefore properly denied without a hearing the motion insofar as it was based on CPL 330.30 (1) because defendant’s unpreserved argument “did not furnish a proper predicate for setting aside the verdict” … .

A trial court is also authorized to set aside a verdict on the ground that “during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict” (CPL 330.30 [2] …). Here, the record establishes that the alleged juror misconduct “was addressed by the court and counsel on the record at the time of trial” and that defendant thus “had knowledge of the matter prior to the verdict” … . We therefore conclude that the court properly denied without a hearing the motion insofar as it was based on CPL 330.30 (2) because “the juror misconduct alleged was known to . . . defendant and . . . defendant had the opportunity to act on the information but failed to do so prior to the verdict” … .People v Kenney, 2022 NY Slip Op 05645, Fourth Dept 10-7-22

Practice Point: A motion to set aside the verdict pursuant to CPL 330.30 (1) must be based upon preserved errors which could be raised on appeal. A motion to set aside the verdict pursuant to CPL 330.30 (2) may be based upon juror misconduct of which the defendant was not aware prior to the verdict. Here, however, the defense was aware of the conduct and did not object.

 

/by
You might also like
THE FAILURE TO PLACE THE PHOTOGRAPH WHICH WAS THE BASIS FOR THE POLICE OFFICER’S IDENTIFICATION OF THE DEFENDANT IN EVIDENCE RENDERED THE OFFICER’S IDENTIFICATION TESTIMONY UNRELIABLE, NEW TRIAL ORDERED 4TH DEPT.
PLAINTIFF PULLED A LOAD OF WASTE BACKWARDS THROUGH AN ACCESS DOOR APPARENTLY EXPECTING THE LIFT TO BE POSITIONED OUTSIDE THE DOOR; THE LIFT HAD MOVED TO A DIFFERENT FLOOR AND PLAINTIFF FELL FROM THE THIRD FLOOR TO THE GROUND; THE ACCESS DOOR WAS SUPPOSED TO BE LOCKED BEFORE THE LIFT MOVED TO A DIFFERENT FLOOR; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION BECAUSE THE ACCESS DOOR LOCK, A SAFETY DEVICE, WAS MISSING (FOURTH DEPT).
THE COURT OF CLAIMS PROPERLY DISMISSED THE CLAIM FINDING THAT CLAIMANT’S DECEDENT WOULD HAVE BEEN KILLED IN THE CAR ACCIDENT EVEN IF THE PROPER W BEAM AS OPPOSED TO THE IMPROPER BOX BEAM HAD BEEN ERECTED AS A BARRIER ACROSS THE CLOSED BRIDGE; TWO JUSTICE DISSENT ARGUED THE MAJORITY IMPROPERLY APPLIED A “BUT FOR” STANDARD OF CAUSATION (FOURTH DEPT).
Complaint Did Not State a Cause of Action Against Mechanic Who Inspected Defendant’s Car—Plaintiff Did Not Allege the Mechanic Created or Exacerbated Any Dangerous Condition—Therefore the Complaint Did Not Allege the Mechanic Owed Plaintiff a Duty of Care
COMPARATIVE NEGLIGENCE IS A DEFENSE TO A LABOR LAW 241 (6) CAUSE OF ACTION (FOURTH DEPT).
CORPORATE OFFICER MAY BE PERSONALLY LIABLE FOR WRONGFUL EVICTION PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 853 (FOURTH DEPT).
Warrantless Arrest in Home in Absence of Exigent Circumstances Mandated Suppression; Package from Paraguay Addressed to Defendant Properly Opened as a “Border Search”
DEFENDANT IN THIS CHILD PORNOGRAPHY CASE DEMONSTRATED MITIGATING FACTORS WARRANTING A DOWNWARD DEPARTURE TO SORA RISK LEVEL ONE (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

A MOTION TO SET ASIDE A JURY VERDICT PURSUANT TO CPL 330.30 (1) MUST BE BASED... FATHER WAS NOT SERVED WITH THE ORDER OF FACT-FINDING AND DISPOSITION IN THE...