People v. Phino
| Decision Date | 24 March 1981 |
| Citation | 80 A.D.2d 804,437 N.Y.S.2d 104 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Nathaniel PHINO, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
M. F. Scholl, New York City, for respondent.
J. D. B. Lewis, New York City, for defendant-appellant.
Before FEIN, J. P., and LUPIANO, SILVERMAN, BLOOM and CARRO, JJ.
Judgment, Supreme Court, New York County, rendered November 9, 1979, convicting defendant, upon resentence, after a jury trial, of criminal sale of a controlled substance in the third degree (PL § 220.39) and criminally possessing a hypodermic instrument (PL § 220.45), and sentencing him thereon to a prison term from 1 to 3 years on the criminal sale count, and an unconditional discharge on the hypodermic instrument count, is unanimously affirmed.
On May 6, 1976 the jury brought in a verdict of guilty. By motion dated June 7, 1976, defendant moved pursuant to CPL § 330.30(3) to set aside the verdict on the sale count and for a new trial thereon on an affirmation by defense counsel that a woman named Myrna Rodriguez had told him that she had witnessed the transaction and that defendant was not the seller; that Ms. Rodriguez had been unwilling to get involved until after the jury verdict when she finally told defendant's wife and "counselor" that she would be willing to talk to defendant's lawyer and to come to court to tell the truth.
On July 29, 1976 the trial judge granted the motion to set aside the verdict and for a new trial. Thereafter there were various adjournments of the proposed new trial. Ultimately defendant's attorney informed the district attorney that Ms. Rodriguez would not testify unless she were granted immunity from prosecution as her version now was that she was criminally involved in the sale. The district attorney refused to consent to such a grant of immunity and on May 10, 1977 moved to vacate the court's order of July 29, 1976 setting aside the verdict. After an oral hearing on October 5, 1977, the court granted the motion to vacate the order of July 29, 1976 and thereafter defendant was sentenced on the original jury verdict.
The factual predicate of the earlier order, July 29, 1976, granting the motion to set aside the verdict was stated by the court:
The witness has now been contacted and is available to testify.
If that factual predicate was inaccurate at that time, or became inaccurate at a later time, the court had power before...
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NEWTON v. U.S.
...granted" on misapprehension of facts) (citing People v. Beath, 277 Mich. 473, 479, 269 N.W. 238, 240 (1936)); People v. Phino, 80 A.D.2d 804, 437 N.Y.S.2d 104 (1981) 16. There was no challenge in Lindsay, supra, to the trial court's jurisdiction to vacate the order setting aside the convict......
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...Fine v. Commonwealth, 312 Mass. 252, 44 N.E.2d 659 (1942); People v. Poole, 7 Mich.App. 237, 151 N.W.2d 365 (1967); People v. Phino, 80 A.D.2d 804, 437 N.Y.S.2d 104 (1981). The cases cited above occur in various factual settings. Some allow reconsideration of an order granting or denying a ......
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...Construction Co., 612 S.W.2d 267 (Tex.Civ.App.1981); Accord State v. Ornelas, 15 Ariz.App. 580, 490 P.2d 25 (1971); People v. Phino, 80 A.D.2d 804, 437 N.Y.S.2d 104 (1981). The appellant here stresses the fact that a span of 10 months expired between the time the trial court entered its ord......