People v. Sudol

• Decision Date: 10 November 2011
• Parties: The PEOPLE of the State of New York, Appellant,v.Ronald SUDOL, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 499
932 N.Y.S.2d 49
2011 N.Y. Slip Op. 07924

The PEOPLE of the State of New York, Appellant,
v.
Ronald SUDOL, Defendant–Respondent.

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

Nov. 10, 2011.

[932 N.Y.S.2d 51]

Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for appellant.Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for respondent.SAXE, J.P., SWEENY, DeGRASSE, MANZANET–DANIELS, ROMÁN, JJ.

[89 A.D.3d 499] Order, Supreme Court, New York County (John Cataldo, J.), entered on or about April 30, 2009, which granted defendant's CPL 330.30(1) motion to set aside a verdict convicting defendant of gang assault in the second degree and assault in the third degree, dismissed the gang assault count, and ordered a new trial on the third-degree assault count, unanimously reversed, the entire verdict reinstated, and the matter remanded for sentencing.

A motion to set aside the verdict may be granted only if it alleges grounds that, if raised on direct appeal, “would require a reversal or modification of the judgment as a matter of law by an appellate court” (CPL 330.30[1] ). Since a trial court lacks this Court's interest of justice jurisdiction, its power is far more [89 A.D.3d 500] limited, and it may only grant a CPL 330.30(1) motion where the error alleged has been preserved by a proper objection at trial ( People v. Everson, 100 N.Y.2d 609, 767 N.Y.S.2d 389, 799 N.E.2d 613 [2003] ).

The motion court, which had also presided at trial, set aside the gang assault conviction on the ground of legal insufficiency with respect to the element of serious physical injury. It also determined that defendant was entitled to a new trial on the remaining count because of prosecutorial improprieties in cross-examination of defendant and in summation. The motion court concluded that defendant had preserved all of these issues. However, we find that none of these issues were preserved under the standards of preservation set forth by the Court of Appeals.

At trial, defendant moved for a trial order of dismissal, but did not challenge the sufficiency of the evidence that the victim sustained a serious physical injury. While defense counsel may have argued to the jury that this element was unproven as a matter of fact, he never argued to the court that it was unproven as a matter of law. Accordingly, this claim is unpreserved ( see People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652...