People v. Shelton

• Decision Date: 08 November 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Charles E. SHELTON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 1334
974 N.Y.S.2d 224
2013 N.Y. Slip Op. 07352

The PEOPLE of the State of New York, Respondent,
v.
Charles E. SHELTON, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 8, 2013.

[974 N.Y.S.2d 225]

Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Matthew Dunham of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him following a jury trial of assault in the first degree (Penal Law § 120.10[1] ) and two counts of misdemeanor driving while intoxicated (Vehicle and Traffic Law § 1192[2], [3] ). The charges stem from an incident during which defendant used his vehicle to run over the victim, who sustained serious physical injuries.

Before sentencing, defendant moved to set aside the verdict pursuant to CPL 330.30(1), contending, inter alia, that he was denied effective assistance of counsel because his former defense attorney never fully explained the specific nature of a plea offer and never informed defendant of the possibility that he could be indicted on a more serious charge or that the more serious charge had a mandatory determinate term of incarceration. We conclude that County Court properly denied the motion.

It is well settled that “[t]he basis for vacating a jury verdict prior to sentencing is strictly circumscribed by CPL 330.30 to allow vacatur only if reversal would have been mandated on appeal as a matter of law” ( People v. Tillman, 273 A.D.2d 913, 913, 709 N.Y.S.2d 765,lv. denied95 N.Y.2d 939, 721 N.Y.S.2d 615, 744 N.E.2d 151 [internal quotation marks omitted]; see People v. Sheltray, 244 A.D.2d 854, 854, 665 N.Y.S.2d 224,lv. denied91 N.Y.2d 897, 669 N.Y.S.2d 12, 691 N.E.2d 1038). The statute is a limitation on a trial court's “jurisdiction” ( People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;see People v. Davidson, 299 A.D.2d 830, 831, 751 N.Y.S.2d 336,lv. denied

[974 N.Y.S.2d 226]

99 N.Y.2d 613, 757 N.Y.S.2d 824, 787 N.E.2d 1170), i.e., the “power” ( People v. Carter, 63 N.Y.2d 530, 536, 483 N.Y.S.2d 654, 473 N.E.2d 6), or “ ‘authority’ ” to set aside a verdict ( Sheltray, 244 A.D.2d at 854, 665 N.Y.S.2d 224;see People v. Adams, 13 A.D.3d 316, 317, 788 N.Y.S.2d 36,following remittal52 A.D.3d 243, 859 N.Y.S.2d 170,lv. denied11 N.Y.3d 829, 868 N.Y.S.2d 604, 897 N.E.2d 1088;People v. Fai Cheung, 247 A.D.2d 405, 405, 667 N.Y.S.2d 929,lv. denied92 N.Y.2d 851, 677 N.Y.S.2d 82, 699 N.E.2d 442).

It is likewise well settled that a trial court “lack[s] the authority to consider facts not appearing on the record in determining [a] defendant's motion pursuant to CPL 330.30(1) to set aside the verdict on the ground, inter alia, of ineffective assistance of counsel” ( People v. Green, 92 A.D.3d 894, 896, 939 N.Y.S.2d 487,lv. denied19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211;see People v. Hardy, 49 A.D.3d 1232, 1233, 856 N.Y.S.2d 324,affd.13 N.Y.3d 805, 890 N.Y.S.2d 372, 918 N.E.2d 884;People v. Griffin, 48 A.D.3d 1233, 1236, 851 N.Y.S.2d 808,lv. denied10 N.Y.3d 840, 859 N.Y.S.2d 399, 889 N.E.2d 86). Thus, “to the extent that [a defendant's motion] concerns matters outside the record on appeal, the proper procedural vehicle is a motion pursuant to CPL 440.10” ( Hardy, 49 A.D.3d at 1233, 856 N.Y.S.2d 324;see Griffin, 48 A.D.3d at 1236, 851 N.Y.S.2d 808). Here, because defendant's motion “did not raise a ‘ground appearing in the record’ (CPL 330.30[1] ),” reversal on direct appeal would not have been mandated as a matter of law, and the court lacked the authority to grant the motion ( Hardy, 49 A.D.3d at 1233, 856 N.Y.S.2d 324;see Griffin, 48 A.D.3d at 1236, 851 N.Y.S.2d 808).

Contrary to defendant's contention, we conclude that the prosecutor raised the above-mentioned statutory limitations in opposition to the motion. Even assuming, arguendo, that he did not raise them, we conclude that the prosecutor's failure to assert them in opposition to the motion could not have bestowed upon the court the authority to exceed the parameters of CPL 330.30(1). Defendant further contends that, because the court did not set forth a legal reason for denying that part of his motion to set aside the verdict, we cannot address the statutory limitations without violating People v. Concepcion, 17 N.Y.3d 192, 194–195, 929 N.Y.S.2d 541, 953 N.E.2d 779. We reject that...