People v. Carthrens

• Citation: 171 A.D.2d 387,577 N.Y.S.2d 249
• Parties: The PEOPLE of the State of New York, Appellant, v. Aldric CARTHRENS, Defendant-Respondent.
• Decision Date: 21 November 1991
• Court: New York Supreme Court — Appellate Division

Page 249

577 N.Y.S.2d 249

171 A.D.2d 387

The PEOPLE of the State of New York, Appellant, v. Aldric CARTHRENS, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Nov. 21, 1991.

Colin Aldrin Fieman, Brooklyn, of counsel (Beth J. Thomas, with him on the brief, Robert M. Morgenthau, Dist. Atty., New York City, attorney), for appellant.

Barry A. Weinstein, New York City, of counsel (Elliot H. Fuld, with him on the brief, Goldstein, Weinstein & Fuld, attorneys), for defendant-respondent.

Before ROSENBERGER, J.P., and ELLERIN, WALLACH, KASSAL and RUBIN, JJ.

ELLERIN, Justice.

At issue on this appeal is the permissible scope of review of a jury verdict by a trial court upon a motion to set aside the verdict under CPL § 330.30.

Defendant was arrested on December 20, 1989 and charged with criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the third degree. At his trial, the evidence against him consisted solely of the testimony of two police officers who participated in his arrest, Officers Turner and Struller. Turner testified that, at approximately 7:50 p.m., he and his partner, who were responding to a radio run reporting shots fired, were in a marked police car which was parked on the northeast corner of 151st Street and Broadway. Officers Struller and Minitor were in a second patrol car right next to them.

According to Struller, he observed defendant walk out of 601 West 151st Street, stop, and look around. Through his open car window, Struller informed Turner that he thought defendant looked "suspicious" and as if he were trying to hide something under his arm. Both officers testified that the patrol cars pulled up in front of 601 and, after leaving their cars, they each saw defendant throw down a paper bag and run back into the building. The bag contained a loaded and operable 9mm gun, twenty rounds of ammunition, a black clip, and a plastic bag containing crack cocaine and cash.

Turner testified that he ran into the building, where he arrived just in time to see defendant's hand disappearing through a window on the left side of the lobby. Turner yelled to Struller, who then proceeded to the back yard of the building, where he apprehended defendant.

The defense at trial was centered on disputing the police officers' credibility. The police testimony that defendant had gone through the lobby window was a particularly vigorously contested issue. While Turner first testified that he had seen defendant's hand at the first window on the left as he entered the lobby, after being shown a picture of that window, he changed his testimony to indicate that it was not the first window through which he had seen defendant climbing and that, in fact, he had not noticed the first window. He estimated the width of the window at which he had seen defendant's hand as five feet, but also stated that it was the same size as the first window. However, upon seeing another picture showing defendant standing in front of the first window, he admitted that defendant, who weighed approximately 300 pounds, was considerably wider than that window. He did not recall whether the window had a window guard.

Ramon Martinez, who identified himself as the assistant superintendent of the building where defendant was arrested, testified on defendant's behalf. He stated that there were four windows in the lobby, one of which was smaller than the rest. At the time of defendant's arrest, all of the windows were stuck shut, although since then he had opened two by using a crow bar. He also stated that the front door of the building and the gate which stood at the entrance of the alley in which defendant had been apprehended were usually locked.

The jury was permitted to make several on-site visits to the building where defendant had been arrested.

The jury returned a verdict convicting defendant of criminal possession of a controlled substance in the second degree, but acquitting him of possession of the weapon. Defense counsel moved to set aside the verdict under CPL § 330.30 on three grounds, i.e., that the police testimony was incredible as a matter of law thereby rendering the evidence legally insufficient, that the verdict was repugnant, and that the jury had been subjected to improper influence. Several weeks later, the court held a hearing concerning the charges of juror misconduct at which two jurors testified.

The court found that, although the police testimony that defendant had jumped from the window was improbable, it was not incredible as a matter of law, that the jury had not been subjected to outside influence and that the verdict was not repugnant. Based on these findings, it held that "each ground of the motion standing alone would not be sufficient for the Court to set aside the verdict." The court nevertheless set the verdict aside, stating that "these grounds viewed together make it evident to this Court that the verdict cannot stand judicial scrutiny in that the defendant was denied a fair trial. To avoid 'the grave risk that an innocent man be convicted,' as it were, the Court grants the motion."

The grounds upon which a trial court may set aside a jury verdict before sentence are limited to those set forth in CPL § 330.30 (People v. Carter, 63 N.Y.2d 530, 483 N.Y.S.2d 654, 473 N.E.2d 6). These include cases where reversal or modification would be required on appeal as a matter of law, where the verdict is tainted by improper jury conduct, or where new evidence has been discovered since the trial which could not have been produced by defendant at the trial even with due diligence and which is of such character as to create a probability that had it been received the verdict would have been more favorable to the defendant.

In the instant case, defendant variously argued that the verdict should be set aside because reversal would be required on appeal as a matter of law in that the evidence was both legally insufficient and the verdict repugnant (CPL § 330.30[1] and because the jury deliberations were tainted (CPL § 330.30 [2]. The trial court expressly rejected each of the grounds raised by defendant under CPL § 330.30[1] and [2]. Instead, the court made clear that it was setting aside the verdict because it believed that there were questions as to whether defendant received a "fair trial" and because, in spite of the legal sufficiency of the evidence, there was a "grave risk that an innocent man [has been] convicted." In so doing the trial court exceeded its power and improperly granted the motion.

A trial court's power to set aside a verdict under CPL § 330.30[1] on the ground that reversal would be required on appeal, as a matter of law, is much more limited than that of an intermediate appellate court to actually reverse. The scope of review granted to intermediate appellate courts by statute (CPL § 470.15) goes far beyond the power to reverse on the law, and authorizes an intermediate appellate court to reverse "[a]s a matter of discretion in the interest of justice" (CPL § 470.15[3][c], [6]. Such reversals are largely the result of errors which, although not preserved for review on the law, are found to have deprived defendant of a fair trial (CPL § 470.15[6][a]. Interest of justice power also "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. Carter, supra, 63 N.Y.2d 530, 536, 483 N.Y.S.2d 654, 473 N.E.2d 6, quoting People v. Kidd, 76 A.D.2d 665, 668, 431 N.Y.S.2d 542.) Additionally, an intermediate appellate court ...