You are here: / / Verdict May Not Be Set Aside Pursuant to Criminal Procedure Law 330.30...
,

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

 

You might also like
Failure to Eliminate Comparative Negligence Precluded Summary Judgment to Plaintiff In Car-Accident Action
Court’s Failure to Inquire to Ensure Guilty Plea Was Knowing and Voluntary Required Vacation of the Plea (In the Absence of Preservation)
THE BUILDER OF THE HOUSE WAS NOT A NECESSARY PARTY IN THIS ACTION AGAINST THE SELLER BY THE PURCHASER; EVEN IF THE BUILDER WERE A NECESSARY PARTY, THE COURT SHOULD HAVE SUMMONED THE BUILDER ITSELF PURSUANT TO CPLR 1001 (b) RATHER THAN DISMISSING THE COMPLAINT (SECOND DEPT).
DEFENSE COUNSEL’S STATING TO THE COURT THAT DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA WAS FRIVOLOUS DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE COUNSEL (SECOND DEPT).
Unpreserved Erroneous Denial of Challenge to Juror Required Reversal
A PERSON ADJUDICATED A YOUTHFUL OFFENDER CAN REFUSE TO ANSWER QUESTIONS ABOUT THE CHARGES, THE POLICE INVESTIGATION, THE PLEA AND THE ADJUDICATION, BUT CANNOT REFUSE TO ANSWER QUESTIONS ABOUT THE UNDERLYING FACTS (SECOND DEPT).
PLAINTIFF VIOLATED THE VEHICLE AND TRAFFIC LAW BY MAKING A LEFT TURN DIRECTLY INTO DEFENDANT’S PATH OF TRAVEL WHEN DEFENDANT HAD A GREEN LIGHT; PLAINTIFF’S TESTIMONY THAT DEFENDANT WAS SPEEDING WAS NOT ENOUGH TO RAISE A QUESTION OF FACT (SECOND DEPT).
Defendant’s Exclusion from a “Sirois” Hearing (Where It Was Determined a Witness Was “Practically Unavailable” Because of Threats Made to the Witness on Behalf of the Defendant) Was Reversible Error

Categories

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

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Incidents of Ownership Awarded Hospital-Services-Tenant in Lease Entitled Tenant... When a Party Does Not Object to Errors in a Verdict Sheet, the Jury Charge Becomes...