People v. Everson

Appellate Division of the Supreme Court of New York

People v. Everson

303 A.D.2d 1027, 757 N.Y.S.2d 196, 2003 N.Y. App. Div. LEXIS 2860

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

DecidedMarch 21, 2003

StatusPublished

Cited by3 cases

This text of 303 A.D.2d 1027 (People v. Everson) 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.

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People v. Everson, 303 A.D.2d 1027, 757 N.Y.S.2d 196, 2003 N.Y. App. Div. LEXIS 2860 (N.Y. Ct. App. 2003).

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—Appeal from an order of Supreme Court, Onondaga County (Brunetti, J.), dated November 23, 2001, which granted defendant’s CPL 330.30 motion to set aside the jury verdict and ordered a new trial.

It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law, the motion is denied, the verdict is reinstated, and the matter is remitted to Supreme Court, Onondaga County, for sentencing.

[1028]*1028Memorandum: The People appeal from an order granting defendant’s CPL 330.30 motion to set aside the jury verdict finding defendant guilty of assault in the first degree (Penal Law § 120.10 [3]) and endangering the welfare of a child (§ 260.10 [1]). We agree with the People that Supreme Court erred in granting the motion based upon an error that would not “require a reversal or modification of the judgment as a matter of law by an appellate court” (CPL 330.30 [1]; see People v Hector, 295 AD2d 212, 213 [2002], lv denied 98 NY2d 730 [2002]; People v D’Alessandro, 184 AD2d 114, 118 [1992], lv denied 81 NY2d 884 [1993]). In granting the motion, the court concluded that it had erred in allowing an expert witness to render her opinion regarding the nature of the infant’s injuries because that opinion was based upon double hearsay. Defendant’s general objection at trial to the relevant part of that witness’s testimony did not preserve for appellate review the issue whether the opinion was impermissibly based on double hearsay (see People v Pierre, 300 AD2d 1070 [2002]; People v Singletary, 270 AD2d 903 [2000], lv denied 95 NY2d 838 [2000]; People v George, 255 AD2d 881 [1998]; People v Michallow, 201 AD2d 915, 917 [1994], lv denied 83 NY2d 874 [1994]). The court thus erred in granting defendant’s motion to set aside the verdict (see People v Quinones, 228 AD2d 190 [1996]; People v Sadowski, 173 AD2d 873 [1991]). We therefore deny defendant’s motion and reinstate the verdict, and we remit the matter to Supreme Court, Onondaga County, for sentencing.

All concur except Green and Gorski, JJ., who dissent and vote to affirm in the following memorandum.

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—Appeal from an order of Supreme Court, Onondaga County (Brunetti, J.), dated November 23, 2001, which granted defendant’s CPL 330.30 motion to set aside the jury verdict and ordered a new trial.

It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law, the motion is denied, the verdict is reinstated, and the matter is remitted to Supreme Court, Onondaga County, for sentencing.

[1028]*1028Memorandum: The People appeal from an order granting defendant’s CPL 330.30 motion to set aside the jury verdict finding defendant guilty of assault in the first degree (Penal Law § 120.10 [3]) and endangering the welfare of a child (§ 260.10 [1]). We agree with the People that Supreme Court erred in granting the motion based upon an error that would not “require a reversal or modification of the judgment as a matter of law by an appellate court” (CPL 330.30 [1]; see People v Hector, 295 AD2d 212, 213 [2002], lv denied 98 NY2d 730 [2002]; People v D’Alessandro, 184 AD2d 114, 118 [1992], lv denied 81 NY2d 884 [1993]). In granting the motion, the court concluded that it had erred in allowing an expert witness to render her opinion regarding the nature of the infant’s injuries because that opinion was based upon double hearsay. Defendant’s general objection at trial to the relevant part of that witness’s testimony did not preserve for appellate review the issue whether the opinion was impermissibly based on double hearsay (see People v Pierre, 300 AD2d 1070 [2002]; People v Singletary, 270 AD2d 903 [2000], lv denied 95 NY2d 838 [2000]; People v George, 255 AD2d 881 [1998]; People v Michallow, 201 AD2d 915, 917 [1994], lv denied 83 NY2d 874 [1994]). The court thus erred in granting defendant’s motion to set aside the verdict (see People v Quinones, 228 AD2d 190 [1996]; People v Sadowski, 173 AD2d 873 [1991]). We therefore deny defendant’s motion and reinstate the verdict, and we remit the matter to Supreme Court, Onondaga County, for sentencing.

All concur except Green and Gorski, JJ., who dissent and vote to affirm in the following memorandum.

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303 A.D.2d 1027, 757 N.Y.S.2d 196, 2003 N.Y. App. Div. LEXIS 2860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-everson-nyappdiv-2003.

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