People v. Thompson

• Decision Date: 10 June 1998
• Parties: , 1998 N.Y. Slip Op. 98,453 PEOPLE of the State of New York, Plaintiff, v. Kevin THOMPSON and Peter Thompson, Defendants.
• Court: New York Supreme Court

Page 845

678 N.Y.S.2d 845

177 Misc.2d 803, 1998 N.Y. Slip Op. 98,453

PEOPLE of the State of New York, Plaintiff, v. Kevin THOMPSON and Peter Thompson, Defendants.

Supreme Court, Kings County.

June 10, 1998.

Legal Aid Society, Brooklyn, (Vincent Warren, of counsel), and Fiol & Hershkowitz, New York City, (Juan R. Fiol, of counsel), for Kevin Thompson, defendant.

Birkett & Birkett, Brooklyn, (Peter W. Birkett, of counsel), and Fink, Katz & Walz, P.L.L.C., New York City (Jonathan A. Fink, of counsel), for Peter Thompson, defendant.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (John Nolan, Matthew Greenberg and Gail Ostriker, of counsel), for plaintiff.

ROBERT S. KREINDLER, Justice.

This case involves what the Practice Commentary (Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL 440.10, 1998 Cumulative Pocket Part, at 86) describes as "an open question as to whether the per se rule will apply where the Rosario material comes to light ... after the jury retires but before sentence is imposed." This case also involves the issue of the appropriate CPL section for bringing a motion to set aside a guilty verdict based upon the discovery of Rosario material after a guilty verdict but before sentencing. This issue has been described as having "no direct Court of Appeals authority" (id.). The Practice Commentary (id.) indicates that this issue is the subject of a footnote by dissenting Judge Titone in People v. Flores (84 N.Y.2d 184, 190 n. 1, 615 N.Y.S.2d 662, 639 N.E.2d 19), which footnote has been undermined by subsequent case law. The Kevin Thompson motion involves the issue of whether or notRosario is violated when defendant has the material, but his attorney is unaware of defendant's possession, and the People fail to turn over such material which is in their possession.

Defendants move to set aside the guilty verdict on the ground that their rights under People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, were violated. Defendants' moving papers cite CPL 330.30 as authority for the making of the motion. They did not specify the particular subdivision of CPL 330.30 under which this motion is made. However, during oral argument both defendants specified that they were proceeding under Subdivision 1.

In determining this motion, the court has considered both defendants' moving papers, the People's affirmation in opposition, and defendant Kevin Thompson's memorandum of law dated May 19, 1998, the court's recollection of the trial, as well as certain portions of the trial minutes.

Findings of Fact

On October 19, 1996, at approximately 5:45 P.M., at 307 Ditmas Ave Brooklyn, New York, a jewelry store was robbed. On April 7, 1997, both defendants were arraigned on this indictment for various theft-related crimes. On August 7, 1997, a parole revocation hearing was conducted as to Kevin Thompson. Kevin Thompson was present at such hearing and was represented by an attorney, who was not his trial attorney. At the parole revocation hearing, two witnesses, the husband and wife proprietors who ultimately testified at trial, were called as witnesses. Sometime after the hearing, but before trial, Kevin Thompson's parole attorney gave him a copy of the two witnesses' testimony.

Defendant Peter Thompson was unaware of these proceedings.

Prior to trial, the District Attorney ordered and received a transcript of the witnesses testimony. The attorney for Kevin Thompson was aware that defendant Kevin Thompson was on parole, but claims to have been unaware that any parole hearing had been conducted. ¹

Defendants were tried for the jewelry store robbery and were each convicted on April 23, 1998, of three counts of first degree robbery. On April 27, 1998 it is alleged that defense counsel for Kevin Thompson had a conversation with an Assistant District Attorney during which he learned that the People were in possession of a transcript of the parole revocation hearing, and that two trial witnesses had testified at the parole hearing.

On May 6, 1998, it is alleged that defendant Peter Thompson's attorney learned of the prosecution's possession of the transcript of the two witnesses' testimony. On that date, both defendants were scheduled to be sentenced, but each made an oral motion to set aside the guilty verdict because of an alleged Rosario violation. The court directed that the motion be in writing. The People in opposition claimed that they believed the material had in fact been turned over to defendants. The court ordered a hearing on this issue.

On June 2, 1998, the hearing was scheduled. At that time, the court informed the parties that it deemed a CPL 330.30 motion an inappropriate vehicle for this alleged violation, but offered the parties the opportunity to conduct a hearing pursuant to CPL 440.10. Both defendants refused to proceed. The court then denied the CPL 330.30 motion and sentenced the defendants. After sentencing, the court again offered to conduct a hearing to enable the defendants to establish all necessary facts. Counsel again refused to proceed. This decision explains the court's actions.

Setting Aside a Verdict

The power of a court to set aside a verdict is "created and measured by statute" (People v. Schmidt, 216 N.Y. 324, 328, 110 N.E. 945; see also, People v. Jackson, 78 N.Y.2d 638, 647, 578 N.Y.S.2d 483, 585 N.E.2d 795). A lower court has no inherent power to set aside a guilty verdict (People v. Carter, 63 N.Y.2d 530, 537-538, 483 N.Y.S.2d 654, 473 N.E.2d 6; People ex rel. Jerome v. General Sessions, 185 N.Y. 504, 506-507, 78 N.E. 149), but is limited to those grounds enumerated by statute and their statutory criteria (People v. Jackson, supra, 78 N.Y.2d, at 647, 578 N.Y.S.2d 483, 585 N.E.2d 795; People v. Schmidt, supra, 216 N.Y. at 328, 110 N.E. 945; see also, People v. Salemi, 309 N.Y. 208, 215, 128 N.E.2d 377). Thus, on a CPL 330.30 motion, the court is limited to the grounds and criteria enumerated in CPL 330.30 (People v. Carthrens, 171 A.D.2d 387, 391, 577 N.Y.S.2d 249; 5 Zett, New York Criminal Practice, § 34.5[1][b], at 34-61-34-62).

CPL 330.30(1)

CPL 330.30(1) authorizes trial courts to set aside a guilty verdict if the ground raised in the motion would mandate as a matter of law that an appellate court reverse or modify the guilty verdict (People v. Ventura, 66 N.Y.2d 693, 694-694, 496 N.Y.S.2d 416, 487 N.E.2d 273; People v. Cheung, 139 A.D.2d 528, 667 N.Y.S.2d 929). The facts relating to the particular ground must appear on the "record" (People v. Bagarozy, 182 A.D.2d 565, 566, 582 N.Y.S.2d 424). Matters outside the "record" are not properly raised on a CPL 330.30(1) motion (People v. Boyd, 244 A.D.2d 497, 664 N.Y.S.2d 335, 336; People v. Grossfeld, 216 A.D.2d 319, 320-321, 628 N.Y.S.2d 331; People v. Hernandez, 210 A.D.2d 535, 536, 619 N.Y.S.2d 826; People v. Knox, 134 A.D.2d 704, 521 N.Y.S.2d 544). If trial facts must be supplemented by an affidavit, then a CPL 330.30(1) motion is inappropriate (People v. Jackson, 152 A.D.2d 977, 978, 544 N.Y.S.2d 763). If a hearing must be conducted, a CPL 330.30(1) motion is unauthorized (People v. Frias, 139 A.D.2d 528, 526 N.Y.S.2d 852; 5 Zett, New York Criminal Practice § 34.5[2][b], at 34-64-34-65). In addition, a trial court cannot set aside a guilty verdict based upon CPL 330.30(1) if the decision to reverse or modify a judgment entails the exercise of appellate discretion (see, People v. Carter, supra, 63 N.Y.2d, at 536, 483 N.Y.S.2d 654, 473 N.E.2d 6).

Further, CPL 330.40 is relevant to this discussion. CPL 330.40 sets forth the procedures to be used when making a motion pursuant to CPL 330.30. There are two subdivisions to CPL 330.40. Subdivision 1 relates to a motion made pursuant to CPL 330.30(1), and has no provision authorizing any type of hearing. In contrast, subdivision 2 of CPL 330.40 authorizes a hearing to be held for claims made pursuant to subdivisions 2 and 3 of CPL 330.30. It is clear from the juxtaposition of these two sections that the Legislature did not authorize hearings for CPL 330.30(1).

The observations of dissenting Judge Titone in People v. Jackson, supra, 78 N.Y.2d, at 657, 578 N.Y.S.2d 483, 585 N.E.2d 795, are relevant. In that case, Judge Titone observed that post-conviction Rosario claims require the "Appellate Division to 'expand' the record." He also observed that the expansion of the record entails a "discretionary order" by the Appellate Division (id.). Thus, post-conviction Rosario claims entail appellate discretion.

In this case, the trial record had to be supplemented by evidence that the witnesses testified at a parole hearing, the content of that testimony, and the attorneys' affidavits stating that they had not possessed the transcripts. This was necessary in order to determine if a Rosario violation occurred. This is inappropriate for a CPL 330.30(1) motion (People v. Jackson, supra, 152 A.D.2d, at 978, 544 N.Y.S.2d 763). Further, the court was required to order a hearing on the disputed facts. This is also inappropriate for a CPL 330.30(1) motion (see prior discussion). As observed by Judge Titone, the record had to be "expanded" and this entails appellate discretion. Thus, the matter is not one of law, but one of discretion. As previously discussed, a trial court is not authorized to entertain a CPL 330.30(1) motion if appellate discretion is involved.

For all these reasons, the court held that a CPL 330.30(1) motion is unauthorized under these circumstances.

The cases cited by defendant Kevin Thompson in the memorandum of law dated May 19, 1998 (People v. Kanefsky, 50 N.Y.2d 162, 428 N.Y.S.2d 453, 405 N.E.2d 1019; People v. Lopez, 196 A.D.2d 664, 601 N.Y.S.2d 708, revd. on other grounds 83 N.Y.2d 994, 616 N.Y.S.2d 334, 639 N.E.2d 1131; People v. Wright, 197 A.D.2d 398, 602 N.Y.S.2d 378) do not constitute binding precedent for the use of CPL 330.30(1) on this type of motion. In each case, a CPL 330.30(1) motion was made and...