Opinion
KA 02-00683
November 15, 2002.
Appeal from a judgment of Supreme Court, Monroe County (Mark, J.), entered March 21, 2002, convicting defendant after a jury trial of loitering.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (ARTHUR G. WEINSTEIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him after a jury trial of loitering in violation of subdivision (2) of Penal Law § 240.35, defendant contends that Supreme Court erred in denying his motion pursuant to CPL 330.30 to set aside the verdict based on the alleged unconstitutionality of that subdivision. We conclude that the court properly denied defendant's motion but erred in deciding the motion on the merits ( see People v. Davidson, 98 N.Y.2d 738 [Oct. 15, 2002]). Defendant's constitutional challenge was raised for the first time on the motion to set aside the verdict and therefore was not a "ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court" (330.30 [1]). Thus, the "court lacked jurisdiction to address [defendant's constitutional challenge] in the context of the CPL 330.30 motion" ( People v. Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678).