People v. Carter

• Citation: 63 N.Y.2d 530,483 N.Y.S.2d 654,473 N.E.2d 6
• Parties: , 473 N.E.2d 6 The PEOPLE of the State of New York, Appellant, v. Eugene CARTER, Respondent.
• Decision Date: 27 November 1984
• Court: New York Court of Appeals

Page 654

483 N.Y.S.2d 654

63 N.Y.2d 530, 473 N.E.2d 6

The PEOPLE of the State of New York, Appellant, v. Eugene CARTER, Respondent.

Court of Appeals of New York.

Nov. 27, 1984.

Barry M. Donalty, Dist. Atty., Utica, (Jay M. Cohen, Brooklyn, of counsel), for appellant.

Frank J. Nebush, Jr., Public Defender, Utica (Edward Francis Gonciarz, Utica, of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

A Trial Judge who has rendered a guilty verdict after a nonjury trial has neither inherent power nor statutory authority to reconsider his factual determination. Although he may correct clerical or ministerial errors, he is without authority to reassess the facts and change a guilty verdict to not guilty. The order of the Appellate Division, 97 App.Div. 964, 469 N.Y.S.2d 41 should, therefore, be reversed, defendant's motion to set aside the verdict denied and the case should be remitted to Oneida County Court for sentencing.

I

On the afternoon of April 4, 1981, two Utica police officers in an unmarked patrol car saw James Spann apparently trying to use the police call phone. Spann shouted to the officers that defendant, who was standing across the street, had a gun and was going to fire. Although the officers called to defendant to halt, he ran to a car, got in and drove away. The officers pursued and after about three blocks saw a handgun being thrown from the driver's window of defendant's car. One of the officers alighted to retrieve the weapon. The other then resumed the chase for several minutes, until defendant voluntarily stopped his car and was arrested.

Indicted for criminal possession of a weapon in the third degree, defendant waived his right to a jury and was tried before a Judge of the Oneida County Court. Conflicting evidence was offered during trial by Spann, defendant, and Theresa Warren, a witness called by defendant. Spann testified that he intended to ask defendant whether there was an affair going on between defendant and Spann's wife, but defendant slapped him across the face and pulled out a small handgun before Spann had a chance to ask any question. Spann then removed a knife from his own pocket and ran to the call box to telephone the police. Defendant, on the other hand, testified that Spann kept badgering and grabbing him until he hit Spann to get him to stop. At that moment, defendant felt something fall and strike his left foot, which turned out to be the gun. After picking up the weapon, defendant saw Spann talking to the police and pointing at him. Defendant testified that this caused him to panic, drive off and throw the gun out of the car window. Thus, the theory of the defense was that defendant was justified in picking up the gun for self-protection and that his possession before he threw it away was temporary and innocent.

Although there was testimony that a number of people were present during the incident, only one, Ms. Warren, called by defendant, testified at trial. Her testimony was, however, so equivocal as not to be helpful in resolving whether defendant had drawn the gun from his pocket or merely retrieved it from the ground. Aside from Spann and the two arresting officers, the only prosecution witness was a police department ballistics expert who testified that the gun was operable with the bullets that were found in it when it was retrieved.

After summations by both counsel, the County Judge announced, without elaboration, that "The verdict of this Court is that the Defendant is guilty of criminal possession of a weapon in the third degree", and fixed a date for sentencing. On the sentencing day, however, defendant's counsel moved to set aside the verdict on the grounds that guilt had not been proven beyond a reasonable doubt and that the verdict had been rendered without due deliberation. In response, the prosecutor argued that there was adequate deliberation and that the evidence was legally sufficient and that, therefore, CPL 330.30 provided no basis for setting aside the verdict.

The Trial Judge granted the motion, set aside the verdict and dismissed the indictment. His bases for doing so were that upon review of the evidence he believed that Spann's testimony did not prove beyond a reasonable doubt the defendant's illegal possession of the pistol, and that although there were other persons present at the scene who might have established beyond a reasonable doubt which version of the facts--defendant's or Spann's--was true, no reason had been given why those persons were not called as witnesses. The order entered in furtherance of that decision recited that defendant's motion had been made under CPL 330.30.

On the People's appeal to the Appellate Division from the dismissal, that court made no mention of CPL 330.30, but affirmed nevertheless, holding that the Trial Judge had "inherent power * * * to correct any errors in its own rulings, provided such correction is made prior to the termination of the proceedings." On their further appeal by leave of a Judge of this court, the People argue that the Trial Judge had neither statutory nor inherent authority to set aside the verdict and defendant, seeking to sustain the order of the courts below, contends that the court, having announced a verdict immediately, without statement of reasoning, failed properly to "consider the case" as required by CPL 320.20 (subd. 3, par. We reverse.

II

CPL 330.30 specifies the grounds upon which a Trial Judge may set aside or modify a guilty verdict before sentence. The only ground arguably relevant to the present case is that stated in subdivision 1: "Any 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" (emphasis supplied). 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 (CPL 470.15, subds. 1, 3), to reverse or modify a judgment when the verdict is against the weight of the evidence (CPL 470.15, subd. 5), and to reverse "a matter of discretion in the interest of justice" (CPL 470.15, subds. 3, 6). Although the interest of justice power permits an intermediate appellate court to vacate a conviction as to which reversal is not warranted on the law or the facts when "there is a grave risk that an innocent man has been convicted" (People v. Kidd, 76 A.D.2d 665, 668, 431 N.Y.S.2d 542, mot. for lv. to app. dsmd. 51 N.Y.2d 882; accord People v. Crudup, 100 A.D.2d 938, 939, 474 N.Y.S.2d 827; People v. Lawrence, 111 Misc.2d 1027, 1033, 447 N.Y.S.2d 793), Trial Judges have no such power. Nor are they authorized to set aside a verdict as against the weight of the evidence. Such power existed under the Code of Criminal Procedure which permitted the Trial Judge to grant a new trial when the verdict was "clearly against evidence" (Code Crim.Pro. § 465, subd. 6; see People v. Ramos, 33 A.D.2d 344, 308 N.Y.S.2d 195), but that power was not carried forward into the Criminal Procedure Law.

The power granted a Trial Judge by CPL 330.30 (subd. 1) to set aside a verdict when reversal as a matter of law by an appellate court would be required is, as concerns proof of guilt, therefore, normally limited to a determination that the trial evidence was not legally sufficient to establish the defendant's guilt of an offense of which he was convicted (CPL 470.15, subd. 4, par. Additionally, even though the evidence meets the statutory test for legal sufficiency (CPL 70.10, subd. 1), ¹ there are instances in which an appellate court can decide that the evidence is inadequate as a matter of law to prove the defendant's guilt beyond a reasonable doubt (see, e.g., People v. Reed, 40 N.Y.2d 204, 206-209, 386 N.Y.S.2d 371, 352 N.E.2d 558 ). Thus, Carter's conviction could have been set aside under CPL 330.30 only if based upon insufficient evidence or evidence which as a matter of law was inadequate to prove guilt beyond a reasonable doubt.

Review of the instant record reveals no such defect in the proof. James Spann's testimony that defendant drew the gun from his pocket, when coupled with the police testimony that the gun was loaded and operable, was sufficient, if accepted as true, to establish every element of the crime with which defendant was charged (see CPL 70.10, subd. 1). There was nothing so clearly exculpatory or so inherently contradictory or unbelievable in the People's proof that it could be regarded as insufficient as a matter of law (see People v. Reed, 40 N.Y.2d 204, 386 N.Y.S.2d 371, 352 N.E.2d 558). And while there was testimony that others were on the sidewalk where the incident occurred, there is nothing in this record, as there was in Reed (40 N.Y.2d, at pp. 206, 209, 386 N.Y.S.2d 371, 352 N.E.2d 558), to establish that any of them could bear witness to where the gun came from. CPL 330.30, therefore, furnished no basis for setting aside the verdict.

III

Although the Appellate Division apparently agreed that there was no statutory predicate for the...