People v. Amato

Appellate Division of the Supreme Court of New York

People v. Amato

238 A.D.2d 432, 656 N.Y.S.2d 360, 1997 N.Y. App. Div. LEXIS 3807

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 14, 1997

StatusPublished

Cited by4 cases

This text of 238 A.D.2d 432 (People v. Amato) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Amato, 238 A.D.2d 432, 656 N.Y.S.2d 360, 1997 N.Y. App. Div. LEXIS 3807 (N.Y. Ct. App. 1997).

Pincite

Opinion

—Appeal by the People from an order of the Supreme Court, Kings County (Juviler, J.), entered January 24, 1996, which granted the defendant’s motion to set aside the verdict finding him guilty of the crimes of assault in the second degree, criminal possession of a weapon in the fourth degree, and aggravated harassment (two counts), and ordered a new trial.

Ordered that the order is reversed, on the law, the motion to set aside the verdict is denied, the verdict is reinstated, and the matter is remitted to the Supreme Court, Kings County, for the imposition of sentence.

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 [1]; 330.50 [1]; People v Ventura, 66 [433]*433NY2d 693, 694-695; People v Carter, 63 NY2d 530, 536-537). Accordingly, only an error of law which is properly preserved for appellate review may serve as a basis for setting aside the verdict (see, People v Albert, 85 NY2d 851, 853; People v Josey, 204 AD2d 571; People v Sadowski, 173 AD2d 873, 874). Here, the defendant failed to preserve for appellate review any issue concerning the prosecutor’s alleged misconduct during summation, or while questioning the complainant. The defendant failed either to object, request curative instructions, or seek additional relief after the court provided curative instructions (see, CPL 470.05 [2]; People v Tardbania, 72 NY2d 852, 853; People v Medina, 53 NY2d 951, 952). Thus, the trial court was not authorized to consider the prosecutor’s alleged misconduct in determining the motion.

Moreover, we cannot say, contrary to the trial court’s finding, that its denial of the defendant’s motion for a mistrial was improper. Any prejudice to the defendant caused by the complainant’s improper reference to a photograph and lineup was ameliorated by the trial court’s striking of the testimony and issuance of prompt curative instructions to the jury (see, People v Santiago, 52 NY2d 865; People v Windley, 181 AD2d 703; People v Richardson, 175 AD2d 143; People v Reed, 176 AD2d 972).

Therefore, the trial court improperly set aside the jury’s verdict. Altman, J. P., Friedmann, Goldstein and Luciano, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—Appeal by the People from an order of the Supreme Court, Kings County (Juviler, J.), entered January 24, 1996, which granted the defendant’s motion to set aside the verdict finding him guilty of the crimes of assault in the second degree, criminal possession of a weapon in the fourth degree, and aggravated harassment (two counts), and ordered a new trial.

Ordered that the order is reversed, on the law, the motion to set aside the verdict is denied, the verdict is reinstated, and the matter is remitted to the Supreme Court, Kings County, for the imposition of sentence.

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 [1]; 330.50 [1]; People v Ventura, 66 [433]*433NY2d 693, 694-695; People v Carter, 63 NY2d 530, 536-537). Accordingly, only an error of law which is properly preserved for appellate review may serve as a basis for setting aside the verdict (see, People v Albert, 85 NY2d 851, 853; People v Josey, 204 AD2d 571; People v Sadowski, 173 AD2d 873, 874). Here, the defendant failed to preserve for appellate review any issue concerning the prosecutor’s alleged misconduct during summation, or while questioning the complainant. The defendant failed either to object, request curative instructions, or seek additional relief after the court provided curative instructions (see, CPL 470.05 [2]; People v Tardbania, 72 NY2d 852, 853; People v Medina, 53 NY2d 951, 952). Thus, the trial court was not authorized to consider the prosecutor’s alleged misconduct in determining the motion.

Moreover, we cannot say, contrary to the trial court’s finding, that its denial of the defendant’s motion for a mistrial was improper. Any prejudice to the defendant caused by the complainant’s improper reference to a photograph and lineup was ameliorated by the trial court’s striking of the testimony and issuance of prompt curative instructions to the jury (see, People v Santiago, 52 NY2d 865; People v Windley, 181 AD2d 703; People v Richardson, 175 AD2d 143; People v Reed, 176 AD2d 972).

Therefore, the trial court improperly set aside the jury’s verdict. Altman, J. P., Friedmann, Goldstein and Luciano, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

238 A.D.2d 432, 656 N.Y.S.2d 360, 1997 N.Y. App. Div. LEXIS 3807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-amato-nyappdiv-1997.

Opinion

Related

Cite This Page — Counsel Stack