The sworn allegations in defendant’s moving papers, i.e., that he learned after the verdict was rendered that a juror who had allegedly been “holding out” contacted defendant’s aunt between the first and second days of deliberation and discussed the likelihood of a guilty verdict when the jury reconvened the following morning, “required a hearing on the issue whether the juror’s alleged misconduct prejudiced a substantial right of defendant” … . People v Tucker, 2014 NY Slip Op 03415, 4th Dept 5-9-14

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

“Pursuant to CPL 330.30 (1), following the issuance of a verdict and before sentencing a court may set aside a verdict on ‘[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court’ ” … . “The power granted a Trial Judge is, thus, far more limited than that of an intermediate appellate court, which is authorized to determine not only questions of law but issues of fact . . . , to reverse or modify a judgment when the verdict is against the weight of the evidence . . . , and to reverse ‘[a]s a matter of discretion in the interest of justice’ ”… . * * *

In our view, the court’s refusal to grant defendant’s request for an adjournment was “an abuse of discretion as a matter of law” and effectively denied defendant the fundamental right to be represented by counsel of his own choosing …   On the date scheduled for suppression hearings, defense counsel, who had been retained by defendant’s family while defendant was incarcerated, withdrew defendant’s requests for suppression and sought an expedited trial without defendant’s knowledge or consent.  At the next court appearance, defendant requested an adjournment of the expedited trial to afford him time in which to retain another attorney.  The court, in denying that request, did not afford defendant “[a] reasonable time and a fair opportunity to secure counsel of his own choice”…, particularly in view of the fact that the trial was expedited without defendant’s knowledge or consent… .  Inasmuch as we conclude that defendant was denied the fundamental right to be represented by counsel of his own choosing, reversal of the judgment of conviction on that ground would be required as a matter of law upon an appeal therefrom (see CPL 330.30 [1]), and the court therefore properly set aside the verdict. People v Rohadfox, 1367, 4th Dept 2-7-14

To set aside a verdict pursuant to CPL 330.30 (3), a defendant must prove that “there is newly discovered evidence (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and, (6) which does not merely impeach or contradict the record evidence”….  People v Madison, KA 11-00313, 389, 4th Dept, 5-3-13