Opinion
February 2, 1998
Appeal from the Supreme Court, Queens County (Demakos, J.).
Ordered that the orders are reversed, on the law, the motions to set aside the jury verdicts are denied, the jury verdicts are reinstated, and the matter is remitted to the Supreme Court, Queens County, for sentencing of the defendant Fai Cheung and resentencing of the defendant Jhong Zheng.
A trial court's authority to set aside a verdict is limited to grounds which, if raised on appeal, would require reversal or modification of the judgment as a matter of law by an appellate court ( see, CPL 330.30; People v. Ventura, 66 N.Y.2d 693, 694-695; People v. Carter, 63 N.Y.2d 530, 536-537). Accordingly only an error of law which is properly preserved for appellate review may serve as a basis for a trial court's setting aside the verdict ( see, People v. Albert, 85 N.Y.2d 851, 853; People v. Josey, 204 A.D.2d 571; People v. Sadowski, 173 A.D.2d 873, 874). Here, the defendants failed to preserve for appellate review any claims concerning the prosecutor's alleged misconduct during summation or any improper "gesturing" on her part. The defendants either failed to object, request curative instructions, or seek additional relief after the court provided curative instructions ( see, CPL 470.05; People v. Tardbania, 72 N.Y.2d 852, 853; People v. Medina, 53 N.Y.2d 951, 952). Thus, the trial court was not authorized to consider the prosecutor's alleged misconduct when determining the motion.
The defendants' remaining contentions are not properly before the Court at this time ( see, CPL 470.15; People v. Armstrong, 237 A.D.2d 452).
Joy, J. P., Krausman, Florio and McGinity, JJ., concur.