People v. Brown

• Decision Date: 13 June 1988
• Citation: 141 A.D.2d 657,529 N.Y.S.2d 552
• Parties: The PEOPLE, etc., Appellant, v. Arthur BROWN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 552

529 N.Y.S.2d 552

141 A.D.2d 657

The PEOPLE, etc., Appellant, v. Arthur BROWN, Respondent.

Supreme Court, Appellate Division Second Department.

June 13, 1988.

Edward J. Kuriansky, Deputy Atty. Gen., New York City (Robert Dublirer and Donald H. Zuckerman, of counsel), for appellant.

Jeffrey Rubin, New York City (Albert J. Brackley, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, WEINSTEIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Kings County (Owens, J.), entered December 2, 1987, which, following a jury verdict convicting the defendant of grand larceny in the second degree (two counts) and offering a false instrument for filing in the first degree (19 counts), granted the defendant's motion to set aside the verdict and dismissed the indictment.

ORDERED that the order is reversed, on the law, the motion is denied, the indictment and jury verdict are reinstated, and the matter is remitted to the Supreme Court, Kings County, for the imposition of sentence.

The defendant, a physician, was charged with billing Medicaid for services to patients which had not been performed. Following the return of a jury verdict finding the defendant guilty of two counts of grand larceny in the second degree and nineteen counts of offering a false instrument for filing in the first degree, the trial court stated that it was setting aside the verdict on the ground that it was contrary to the weight of the evidence. In rendering its decision, the trial court noted that the actual billing had been carried out by employees of the defendant rather than defendant himself, that in certain areas the memories of the prosecution witnesses were unclear and that the auditor, called as a witness by the prosecution, had testified on cross-examination that he had found the discrepancies in the defendant's billing because he was instructed to do so by the prosecutor's office.

Unlike this court which, on appeal from a judgment of conviction, is empowered to reverse on the ground that the verdict is against the weight of the evidence (CPL 470.15[5]; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672), a trial court may set aside a verdict pursuant to CPL 330.30 only in instances where the evidence is legally insufficient to support the verdict ( see, People v. Carter, 63 N.Y.2d 530, 536, 483 N.Y.S.2d 654, 473 N.E.2d 6). Although the order which was ultimately signed by the trial court gave as its basis the legal insufficiency of the evidence, the factors noted by the court at the time of its oral decision addressed the credibility to be given various prosecution witnesses and it is clear from the record that the basis for the court's decision was that the verdict was against the weight of the evidence. Clearly, the trial court did not have the authority to set aside...