| People v Sudol |
| 2011 NY Slip Op 07924 [89 AD3d 499] |
| November 10, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Appellant, v RonaldSudol, Respondent. |
—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), forrespondent.
Order, Supreme Court, New York County (John Cataldo, J.), entered on or about April 30,2009, which granted defendant's CPL 330.30 (1) motion to set aside a verdict convictingdefendant of gang assault in the second degree and assault in the third degree, dismissed the gangassault count, and ordered a new trial on the third-degree assault count, unanimously reversed,the entire verdict reinstated, and the matter remanded for sentencing.
A motion to set aside the verdict may be granted only if it alleges grounds that, if raised ondirect appeal, "would require a reversal or modification of the judgment as a matter of law by anappellate court" (CPL 330.30 [1]). Since a trial court lacks this Court's interest of justicejurisdiction, its power is far more limited, and it may only grant a CPL 330.30 (1) motion wherethe error alleged has been preserved by a proper objection at trial (People v Everson, 100NY2d 609 [2003]).
The motion court, which had also presided at trial, set aside the gang assault conviction onthe ground of legal insufficiency with respect to the element of serious physical injury. It alsodetermined that defendant was entitled to a new trial on the remaining count because ofprosecutorial improprieties in cross-examination of defendant and in summation. The motioncourt concluded that defendant had preserved all of these issues. However, we find that none ofthese issues were preserved under the standards of preservation set forth by the Court of Appeals.
At trial, defendant moved for a trial order of dismissal, but did not challenge the sufficiencyof the evidence that the victim sustained a serious physical injury. While defense counsel mayhave argued to the jury that this element was not proved as a matter of fact, he never argued tothe court that it was not proved as a matter of law. Accordingly, this claim is unpreserved (seePeople v Gray, 86 NY2d 10 [1995]), and the motion court lacked authority to set aside theverdict on that ground. However, the court's ruling on the merits was correct. The evidence wasinsufficient to establish that the victim suffered serious physical injury (see Penal Law§ 10.00 [10]) as a result of the attack. The fracture to the orbital socket of the victim's eyewas surgically repaired and the victim suffered no lasting ill effects beyond an occasionaltwitching of his eye (see People vRosado, 88 AD3d 454 [2011]). Nevertheless, given the current procedural [*2]posture, we are unable to affirm on this ground, and are constrainedby CPL 470.05 (1) to await a postsentencing appeal by defendant to consider the question ofwhether the sufficiency claim should be addressed under our interest of justice or weight of theevidence review powers (see People v Goodfriend, 64 NY2d 695 [1984]; People vPonnapula, 229 AD2d 257, 274 [1997]; People v Sadowski, 173 AD2d 873, 873-874[1991]).
The motion court also set aside the verdict on the ground that the prosecutor improperlycross-examined defendant about an Internet statement he made, in which defendant expressed ananti-police and anti-authority bias. However, the record fails to support the court's finding thatdefendant preserved this issue by way of a specific objection.
In any event, regardless of preservation, none of the bases on which the court faulted thiscross-examination was a sufficient ground on which to order a new trial. The cross-examinationdid not implicate the court's Sandoval ruling or defendant's right to notice under CPL240.43, because it only involved an attitude, not "criminal, vicious or immoral conduct." Whilethe prosecutor failed to read the complete statement, defense counsel could have provided the fullcontext by introducing the remainder of the statement (see People v Torre, 42 NY2d1036 [1977]), but failed to do so. Finally, the statement had some impeachment value regardingan aspect of defendant's testimony. While the trial court could have chosen to exercise itsdiscretion to exclude the statement as unduly prejudicial, its failure to do so did not entitledefendant to a new trial as a matter of law.
The court also set aside the verdict on the ground of a series of alleged improprieties in theprosecutor's summation. With the possible exception of a remark that defendant challenged asshifting the burden of proof, none of his challenges to the summation were properly preserved(see People v Romero, 7 NY3d911, 912 [2006]). In any event, the challenged remarks were generally permissible (seePortuondo v Agard, 529 US 61 [2000]; People v Savage, 50 NY2d 673 [1980],cert denied 449 US 1016 [1980]; People v Overlee, 236 AD2d 133 [1997], lvdenied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119[1992], lv denied 81 NY2d 884 [1993]), and nothing in the summation was so egregiousas to require a new trial. Moreover, any improprieties could have been rectified by curativeinstructions, but defendant never requested any (see People v Young, 48 NY2d 995[1980]). Concur—Saxe, J.P., Sweeny, DeGrasse, Manzanet-Daniels and RomÁn, JJ.