People v Giles
2014 NY Slip Op 08871 [24 NY3d 1066]
New York Court of Appeals
Decided on December 18, 2014
Blog by: Stephen N. Preziosi Esq., Criminal Appeals Lawyer
The New York Court of Appeals: Motions To Set Aside The Verdict – When Is A CPL 330 Motion Like A CPL 440 Motion
Issue: Whether a motion to vacate a judgement pursuant to CPL 330.30(1) can be based upon matters outside the record and whether a trial court has authority to consider a 330 motion a premature 440 motion.
Summary: Defendant was convicted after a jury trial in the Supreme Court, New York County of attempted burglary in the second and third degrees, two counts of criminal possession of stolen property in the fourth degree, and possession of burglars tools. He appealed, and the Supreme Court, Appellate Division affirmed. Leave to appeal was granted, and the Court of Appeals remanded for a new trial. On remittance, defendant was convicted after a jury trial in the Supreme Court, New York County of attempted burglary in the second degree and criminal possession of burglars tools, and in the Supreme Court, New York County of criminal possession of stolen property in the fourth degree, and was sentenced as persistent felony offender. Defendant appealed, and the Supreme Court, Appellate Division held that (1) his ineffective assistance of counsel claims were unreviewable on direct appeal; (2) sentence of aggregate term of 20 years to life for attempted burglary in the second degree and criminal possession of burglars tools was excessive; and (3) sentence of aggregate term of 20 years to life for two counts of criminal possession of stolen property in the fourth degree was excessive. Leave to appeal was granted, and the Court of Appeals affirmed.
See Also: The 440 Motion: Raising Ineffective Assistance Claims After Direct Appeal
Holding: The Court of Appeals held that defendants motion to set aside the verdict pursuant to CPL 330.30(1) was procedurally improper because they were not premised on matters contained within the record; the statute did not permit defendants to expand the record to include matters that did not appear in the record prior to the filing motion, and his challenges to the constitutionality of his sentencing as a persistent felony offender are without merit under existing precedent. The Court of Appeals expressed no opinion on whether the trial court had authority to consider the 330 motion a premature 440 motion.
Facts: Defendant was convicted after a jury trial in the Supreme Court, New York County of attempted burglary in the second and third degrees, two counts of criminal possession of stolen property in the fourth degree, and possession of burglars tools. He appealed, the Supreme Court, Appellate Division affirmed, the Court of Appeals granted leave to appeal, and then affirmed as modified and remitted.
On September 10, 2009, defendant was again convicted after a jury trial in the Supreme Court, New York County of attempted burglary in the second degree and criminal possession of burglars tools, and in the Supreme Court, New York County of criminal possession of stolen property in the fourth degree, and was sentenced as persistent felony offender to an aggregate term of 20 years to life. Defendant moved to set-aside the verdict pursuant to CPL 330.30(1) based upon ineffective assistance of counsel, specifically attacking the strategy of his defense counsel. The trial court denied defendants motion. Defendant appealed arguing that his sentence was excessive, and that his motion to set aside the verdict pursuant to CPL 330.30(1) should be considered a premature de factor CPL 440.10 motion.
On May 22, 2012, the Supreme Court, Appellate Division unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence for the attempted burglary conviction to a term of 15 years to life. The First Department denied as procedurally defective his motion to set aside the verdict pursuant to CPL 330.30(1) because it was premised on matters outside the existing trial record. In addition, the Appellate Court held it was without authority to consider the merits of defendants CPL 440.10 argument because it was not raised in the trial court and therefore not preserved for appeal. Notwithstanding, the bench decided that defendant received effective assistance of counsel under the state and federal standards. The Court of Appeals granted defendant leave to appeal and then affirmed.
Legal Analysis: The divided bench of the Court of Appeals affirmed that defendants motion to set aside the verdict was procedurally defective because it was premised upon matters outside the existing trial record.
Pursuant to CPL 330.30(1), any time after rendition of a verdict of guilty and before sentence, the court may, upon a motion of the defendant, set aside or modify the verdict or any party thereof upon (1) any ground appearing in the record, which, if raised upon an appeal from a prospective judgment of conviction, would require reversal or modification of the judgment as a matter of law by an appellate court.
Here, defendants argument was based upon his counsels defense strategy, which was not contained within the trial record. Moreover, the statute does not permit defendant to expand the record to include matters that did not appear in the record prior to filing his motion. The justices expressed no opinion on whether the trial court has the authority to consider defendants motion as a premature de facto CPL 440.10 motion because he failed to preserve the issue for appeal. And, there was nothing in the record to suggest that the trial court deemed defendants motion as such or decided it in accordance with the criteria and procedures delineated in CPL 440.30 (People v. Wolf, 98 N.Y.2d 105, 118-119[2002].
Finally, the Court found defendants challenges to the constitutionality of his sentencing as a persistent felony offender to be without merit under existing precedent (People v. Bell, 15 N.Y.3d 935, 936[2010]; People v. Battles, 16 N.Y.3d 54, 59[2010]; People v. Quinones, 12 N.Y.3d 116, 129-130[2009]).