People v. Price
| Decision Date | 20 February 1979 |
| Parties | The PEOPLE, etc., Appellant, v. Charles Vincent PRICE, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Carl A. Vergari, Dist. Atty., White Plains (Cheryl K. Kosan and Anthony J. Servino, White Plains, of counsel), for appellant.
Kalman & Kaufman, P. C., New York City (Edwin Kaufman, New York City, of counsel), for respondent.
Before HOPKINS, J. P., and TITONE, O'CONNOR and COHALAN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the People from (1) an order of the Supreme Court, Westchester County, entered January 3, 1978, which granted defendant's motion to set aside the jury verdict and (2) a further order of the same court, dated January 6, 1978, which, upon resettlement, dismissed the indictment on the ground that the verdict was inconsistent and the result of a compromise.
Appeal from the order entered January 3, 1978, dismissed.
Order dated January 6, 1978 reversed, on the law, indictment and verdict reinstated, and case remanded to Criminal Term for sentencing.
Defendant-respondent's motion to dismiss this appeal was denied on October 25, 1978 with leave to renew on the appeal. The motion was renewed at oral argument. Upon reconsideration, we adhere to the prior ruling. The issue raised by the motion concerns the timeliness of the filing of the notice of appeal by the People. Defendant contends that the order being appealed was the written order filed on January 3, 1978. The People contend that the order being appealed from is the court's January 6, 1978 ruling from the bench on the People's motion for resettlement. Since, at the earliest, the notice of appeal was filed on February 6, 1978, it is important to determine from which order the appeal was taken. Thirty days from January 6 was February 5, a Sunday, thereby making the appeal from the latter order timely. (See CPL 460.10.)
The written order filed January 3 simply states "MOTION GRANTED to set aside verdict." The People then moved for resettlement because this order did not state whether the court intended to dismiss the indictment or direct a new trial. The motion was heard and decided in a brief, open-court colloquy on January 6, 1978. When asked what corrective action it meant to prescribe, the court said that dismissal of the indictment was intended. No written order setting forth this corrective action was issued.
It is our opinion that the appealable order is that of January 6 because that is when corrective action was directed. The CPL provides that a trial court which sets aside a verdict must take corrective action (CPL 330.50, 470.20). Therefore, the court's order filed January 3 was incomplete. Upon resettlement, it became final by the direction of corrective action. If the People filed the notice of appeal on February 6, 1978 the appeal was timely taken.
There is ample proof in the form of affidavits and photostatic copies from the County Clerk's minute book that the Assistant District Attorney served two copies of a notice of appeal on the County Clerk of Westchester County and mailed a copy to defendant's attorney on February 6. Such service was proper and the appeal timely taken (see CPL 460.10).
On the merits of the appeal, the issue is whether the verdict herein was inconsistent or repugnant. Defendant was indicted Inter alia for selling cocaine to an undercover policeman named Rosato on September 9 and September 11, 1976. The sales were arranged by a confidential informant named Gambel. At the trial Gambel and Rosato testified that defendant met them in a parking lot behind the delicatessen where Gambel was employed. The purpose of the meeting was to transact a sale of cocaine. Rosato and the defendant entered defendant's vehicle where Rosato purchased what turned out to be cocaine. This sequence of events, with minor variation, occurred on both September 9 and September 11. A defense of alibi on both days was presented; defendant claimed to be occupied at his job.
The jury returned a verdict convicting the defendant of the September 11 sale and acquitting him of the September 9 sale. Defendant moved to set aside the verdict as inconsistent and repugnant. The trial court granted the motion on the ground that the jury could not logically credit the testimony of the People's...
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