Opinion
741 KA 21-01755
10-07-2022
The PEOPLE of the State of New York, Appellant, v. Paul R. ALLEN, Defendant-Respondent.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR APPELLANT. D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-RESPONDENT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR APPELLANT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, the motion is denied, the verdict is reinstated and the matter is remitted to Oswego County Court for sentencing.
Memorandum: The People appeal from an order granting defendant's motion pursuant to CPL 330.30 (1) to set aside the jury verdict finding him guilty of, inter alia, two counts of sexual abuse in the first degree ( Penal Law § 130.65 [2], [4] ). We agree with the People that County Court erred in granting the motion. Pursuant to CPL 330.30 (1), following the issuance of a verdict and before sentencing a court may set aside a verdict on "[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court." Defendant's motion to set aside the verdict pursuant to CPL 330.30 (1) was procedurally improper because it was "premised on matters outside the existing trial record, and CPL 330.30 (1) did not permit defendant[ ] to expand the record to include matters that did not ‘appear[ ] in the record’ prior to the filing of the motion[ ]" ( People v. Giles , 24 N.Y.3d 1066, 1068, 2 N.Y.S.3d 30, 25 N.E.3d 943 [2014], cert denied 577 U.S. 828, 136 S.Ct. 32, 193 L.Ed.2d 46 [2015] ; see People v. Robinson , 158 A.D.3d 1263, 1265, 70 N.Y.S.3d 709 [4th Dept. 2018], lv denied 32 N.Y.3d 1067, 89 N.Y.S.3d 122, 113 N.E.3d 956 [2018] ). We therefore reverse the order, deny the motion, and reinstate the verdict inasmuch as defendant's claim was not reviewable pursuant to CPL 330.30 (1) (see generally Robinson , 158 A.D.3d at 1265, 70 N.Y.S.3d 709 ); we remit the matter to County Court for sentencing.