Opinion
2017-12960 Ind. No. 5671/15
01-15-2020
The PEOPLE, etc., appellant, v. Dane TYNDALL, respondent.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for appellant. Craig S. Leeds, New York, NY, for respondent.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for appellant.
Craig S. Leeds, New York, NY, for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is reversed, on the law, the defendant's motion to set aside the jury verdict is denied, the indictment and the verdict are reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
The defendant was charged with various offenses stemming from his participation in an armed robbery that occurred in the basement of a barbershop in Brooklyn. The Supreme Court submitted six counts to the jury: two counts of robbery in the first degree ( Penal Law § 160.15[4] ), two counts of robbery in the second degree ( Penal Law § 160.10[1] ), burglary in the first degree ( Penal Law § 140.30[4] ), and burglary in the third degree ( Penal Law § 140.20 ). The jury convicted the defendant of all counts. The court granted the defendant's motion pursuant to CPL 330.30(1) to set aside the verdict. The People appeal.
"In considering a motion to set aside or modify a jury verdict pursuant to CPL 330.30(1), a trial court may only consider questions of law, not fact" ( People v. McFadden, 94 A.D.3d 1150, 1150, 942 N.Y.S.2d 811 ). Legal sufficiency of the evidence supporting a conviction presents a pure question of law (see People v. Hampton, 21 N.Y.3d 277, 287, 970 N.Y.S.2d 716, 992 N.E.2d 1059 ). Here, however, the Supreme Court should not have set aside the defendant's convictions on the ground that they were based on legally insufficient evidence, since the evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). The defendant's contentions, inter alia, that the verdict was against the weight of the evidence, the prosecutor made improper remarks during summation, the police improperly returned evidence to the complainants without providing the defense with the opportunity to examine or inspect them, and the jury's deliberations were cut short, were not considered by the Supreme Court, and thus are alternative grounds for affirmance. However, on the People's appeal, this Court is "without power to consider [the] defendant's alternat[e] arguments for affirmance" ( People v. Karp, 76 N.Y.2d 1006, 1009, 565 N.Y.S.2d 751, 566 N.E.2d 1156 ; see People v. Sturges, 164 A.D.3d 616, 619, 82 N.Y.S.3d 85 ; People v. Banks, 42 A.D.3d 574, 575, 840 N.Y.S.2d 137 ).
DILLON, J.P., LEVENTHAL, MALTESE and CHRISTOPHER, JJ., concur.