| People v Benton |
| 2010 NY Slip Op 08210 [78 AD3d 1545] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Jonathan Benton andTimothy Jones, Respondents. |
—[*1] The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), enteredNovember 4, 2009. The order granted the motions of defendants pursuant to CPL 330.30 (1) to setaside a nonjury verdict.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, themotions are denied, the verdict is reinstated and the matter is remitted to Supreme Court, Erie County,for sentencing.
Memorandum: The People appeal from an order granting the respective motions of defendantspursuant to CPL 330.30 (1) to set aside the verdict following a bench trial finding them each guilty oftwo counts of robbery in the second degree (Penal Law § 160.10 [1], [2] [a]). We agree withthe People that Supreme Court erred in granting those motions. Thus, we reverse the order andreinstate the verdict. Pursuant to CPL 330.30 (1), following the issuance of a verdict and beforesentencing a court may set aside a verdict on "[a]ny ground appearing in the record which, if raisedupon an appeal from a prospective judgment of conviction, would require a reversal ormodification of the judgment as a matter of law by an appellate court" (emphasis added). Here,the court granted the motions based on the People's failure to disclose a DNA report that had beenrequested by both defendants and that defendants contended constituted Brady material."Reversal of a judgment of conviction based on [the People's failure to disclose Brady material]is not 'mandated on appeal as a matter of law' unless the issue has been preserved for appellate reviewby a timely [objection]" (People v Tillman, 273 AD2d 913, 913 [2000], lv denied 95NY2d 939 [2000]; see People vCaswell, 56 AD3d 1300, 1303 [2008], lv denied 11 NY3d 923 [2009],reconsideration denied 12 NY3d 781 [2009]). The record establishes that, despite discussingthe lack of disclosure in court, neither defendant objected to the lack of disclosure or otherwise alertedthe court to the basis for reversal set forth in the CPL 330.30 motions. Thus, because preservation ofthe contention underlying the CPL 330.30 motions was required and there was no preservation of thatcontention (see Caswell, 56 AD3d at 1303), reversal by an appellate court based on thatcontention was not required as a matter of law and the court lacked the authority to grant the CPL330.30 motions (see generally [*2]People v Carter, 63 NY2d530, 536 [1984]). Present—Smith, J.P., Lindley, Sconiers, Pine and Gorski, JJ.