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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.

 

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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...