People v. Malave

Appellate Division of the Supreme Court of New York

People v. Malave

104 A.D.2d 828, 480 N.Y.S.2d 150, 1984 N.Y. App. Div. LEXIS 20312

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

DecidedOctober 1, 1984

StatusPublished

Cited by3 cases

This text of 104 A.D.2d 828 (People v. Malave) 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. Malave, 104 A.D.2d 828, 480 N.Y.S.2d 150, 1984 N.Y. App. Div. LEXIS 20312 (N.Y. Ct. App. 1984).

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Opinion

— Appeal by defendant from a [829]*829judgment of the Supreme Court, Kings County (Pincus, J.), rendered February 4, 1981, convicting him of murder in the second degree (felony murder), upon a jury verdict, and imposing sentence.

Judgment affirmed.

The evidence at trial, if credited by the jury, was sufficient to sustain the verdict. Furthermore, we find no error in the trial court’s denial, without a hearing, of defendant’s posttrial motion pursuant to CPL 330.40 to set aside the verdict. A motion to set aside the verdict on the ground of newly discovered evidence may be denied without a hearing if “[t]he moving papers do not contain sworn allegations of all facts essential to support the motion” (CPL 330.40, subd 2, par [e], cl [i]). Here, the supporting affidavit simply stated that one “Stanley”, who had been characterized in the testimony at trial as a “lookout”, was the one who stabbed the victim, and not defendant. Since the affiant failed to allege that defendant and the codefendant Melendez were not present at the stabbing, his statement does not affect defendant’s criminal liability for felony murder.

We have considered defendant’s remaining contention and find it to be without merit. Mollen, P. J., Mangano, O’Connor and Lawrence, JJ., concur.

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— Appeal by defendant from a [829]*829judgment of the Supreme Court, Kings County (Pincus, J.), rendered February 4, 1981, convicting him of murder in the second degree (felony murder), upon a jury verdict, and imposing sentence.

Judgment affirmed.

The evidence at trial, if credited by the jury, was sufficient to sustain the verdict. Furthermore, we find no error in the trial court’s denial, without a hearing, of defendant’s posttrial motion pursuant to CPL 330.40 to set aside the verdict. A motion to set aside the verdict on the ground of newly discovered evidence may be denied without a hearing if “[t]he moving papers do not contain sworn allegations of all facts essential to support the motion” (CPL 330.40, subd 2, par [e], cl [i]). Here, the supporting affidavit simply stated that one “Stanley”, who had been characterized in the testimony at trial as a “lookout”, was the one who stabbed the victim, and not defendant. Since the affiant failed to allege that defendant and the codefendant Melendez were not present at the stabbing, his statement does not affect defendant’s criminal liability for felony murder.

We have considered defendant’s remaining contention and find it to be without merit. Mollen, P. J., Mangano, O’Connor and Lawrence, JJ., concur.

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Bluebook (online)

104 A.D.2d 828, 480 N.Y.S.2d 150, 1984 N.Y. App. Div. LEXIS 20312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-malave-nyappdiv-1984.

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