People v. Sadowski

• Decision Date: 31 May 1991
• Citation: 173 A.D.2d 873,571 N.Y.S.2d 77
• Parties: The PEOPLE, etc., Appellant, v. Stanley SADOWSKI, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 77

571 N.Y.S.2d 77

173 A.D.2d 873

The PEOPLE, etc., Appellant, v. Stanley SADOWSKI, Respondent.

Supreme Court, Appellate Division,

Second Department.

May 31, 1991.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Leonard Joblove and Linda Cantoni, of counsel), for appellant.

Harvey L. Greenberg, New York City, for respondent.

Before BROWN, J.P., and SULLIVAN, LAWRENCE and RITTER, JJ.

MEMORANDUM BY THE COURT.

Appeals by the People (1) from an order of the Supreme Court, Kings County (Pesce, J.), dated October 5, 1989, which granted the defendant's motion to set aside the verdict and ordered a new trial, and (2) as limited by their brief, from so much of an order of the same court, dated July 27, 1990, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated October 5, 1989, is dismissed, as that order was superseded by the order dated July 27, 1990, made upon reargument; and it is further,

ORDERED that the order dated July 27, 1990, is reversed insofar as appealed from, on the law, the order dated October 5, 1989, is vacated, the defendant's motion to set aside the verdict is denied, and the verdict is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

Initially, we note that although the court, in the order dated July 27, 1990, purportedly denied reargument, it did in fact reconsider the motion in light of new case law, and, thus, in effect, granted reargument, but adhered to its original determination. As such, an appeal properly lies from that order.

The defendant was tried for manslaughter in the first degree in connection with the beating death of Walter Bijowski on December 6, 1985. At the close of evidence, the court indicated that it would instruct the jury on the defendant not taking the stand. The defendant voiced no objection at that time, nor after the court instructed the jury not to draw an adverse inference from the defendant not testifying. The jury found the defendant guilty. The defendant then moved to set aside the verdict asserting, inter alia, that giving the "no adverse inference" charge where none was requested was error. The motion was granted, and, upon reargument, the court adhered to that determination.

The People appeal. They argue that because no issue of law with regard to the "no adverse inference" charge was preserved by an objection, the giving of that instruction could not require reversal as a matter of law, and in turn, could not properly form the basis for setting aside a verdict.

A trial court's authority to set aside a verdict is limited. Relevant here, CPL 330.30(1) permits a trial court to set aside a verdict only on a ground which, if raised on appeal, would require a reversal as a matter of law (see, People v. Carter, 63 N.Y.2d 530, 483 N.Y.S.2d 654, 473 N.E.2d 6). Accordingly, only a claim of error that is properly preserved for appellate review will provide a basis to set aside the verdict (see, People v. Du Boulay, 140 A.D.2d 707, 529 N.Y.S.2d 26; People v. James, 112 A.D.2d 380, 491 N.Y.S.2d 836). While People v. McLucas, 15 N.Y.2d 167, 170-171, 256 N.Y.S.2d 799, 204 N.E.2d 846 held that error implicating the defendant's right against self-incrimination is so fundamental that it required no objection to preserve it for...