Opinion
2012-05-21
The PEOPLE of the State of New York, Appellant, v. Sean HAWKINS, Respondent.
Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Sholom J. Twersky of counsel), for appellant. Michael W. Warren, P.C., Brooklyn (Michael W. Warren of counsel), for respondent.
Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Sholom J. Twersky of counsel), for appellant. Michael W. Warren, P.C., Brooklyn (Michael W. Warren of counsel), for respondent.
Present: WESTON, J.P., RIOS and ALIOTTA, JJ.
Appeal from an order of the Criminal Court of the City of New York, Kings County (Miriam Cyrulnik, J.), dated August 9, 2010. The order granted defendant's motion pursuant to CPL 330.30 to set aside a verdict.
ORDERED that the order is reversed, on the law, defendant's motion to set aside the verdict is denied, the verdict is reinstated and the matter is remitted to the Criminal Court for all further proceedings.
After a bench trial, defendant was found guilty of 10 counts of sexual abuse in the second degree (Penal Law § 130.60), 10 counts of sexual abuse in the third degree (Penal Law § 130.55) and endangering the welfare of a child (Penal Law § 260.10). Prior to sentencing, defendant moved to set aside the verdict on the ground that he was denied the right to a public trial. The motion was supported by the affirmations of two attorneys, who alleged that they had attempted to enter the courtroom during the proceedings but that they had observed a “Do Not Enter” sign posted on the courtroom door, and, thus, they had not entered the courtroom. One of the attorneys further alleged that he was also stopped by a court officer and told not to enter the courtroom. The Criminal Court granted the motion on the ground that plaintiff had been denied the right to a public trial.
Pursuant to CPL 330.30(1), a motion to set aside or modify a verdict or any part thereof may be made upon “any 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.” Defendant's CPL 330.30(1) motion should have been denied by the Criminal Court because the motion was procedurally defective as it was based on a ground which did not appear in the record ( see People v. Miller, 68 A.D.3d 1135, 892 N.Y.S.2d 152 [2009] ). We note that the Criminal Court did not treat the motion as a “de facto CPL 440.10 motion” ( People v. Wolf, 98 N.Y.2d 105, 119, 745 N.Y.S.2d 766, 772 N.E.2d 1124 [2002] ). Defendant should have waited until after sentencing before making an appropriate CPL 440.10 motion, in which matters may be raised which do not appear in the record ( see People v. Rohlehr, 87 A.D.3d 603, 927 N.Y.S.2d 919 [2011];People v. Ai Jiang, 62 A.D.3d 515, 880 N.Y.S.2d 12 [2009] ). Even if the motion had been treated as a “de facto CPL 440.10 motion” it is not properly before this Court, since defendant did not seek leave to appeal from the denial of the motion ( seeCPL 450.15; 460.15; People v. Ai Jiang, 62 A.D.3d 515, 880 N.Y.S.2d 12;People v. Phillmore, 9 Misc.3d 126[A], 2005 N.Y. Slip Op. 51426[U], 2005 WL 2216930 [App. Term, 2d & 11th Jud. Dists. 2005] ). In view of the foregoing, we do not reach the merits of defendant's motion.
Accordingly, the order is reversed, defendant's motion to set aside the verdict is denied, the verdict is reinstated and the matter is remitted to the Criminal Court for all further proceedings. RIOS and ALIOTTA, JJ., concur.
WESTON, J.P., dissents in a separate memorandum.
WESTON, J.P., dissents and votes to grant leave to appeal from the order and to affirm the order in the following memorandum:
I agree with the majority that since defendant's motion was based on matters outside the record, it was not proper for the court to set aside the verdict pursuant to CPL 330.30(1) ( see People v. Wolf, 98 N.Y.2d 105, 745 N.Y.S.2d 766, 772 N.E.2d 1124 [2002] ). Nevertheless, in the interest of judicial economy, I would treat defendant's motion as a motion to vacate the conviction pursuant to CPL 440.10 and grant leave to appeal from the order denying the motion. Upon doing so, I would affirm.
Although the majority opines that a CPL 440.10 motion cannot be made where, as here, defendant has not been sentenced, I disagree. Judiciary Law § 2–b (3) authorizes a court “to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.” Thus, a court may consider a CPL 330.30 motion as one made under CPL 440.10 “where fairness and judicial economy are not sacrificed” ( People v. Toland, 2 A.D.3d 1053, 1055–1056, 770 N.Y.S.2d 148 [2003];see also People v. Deblinger, 179 Misc.2d 35, 683 N.Y.S.2d 814 [Sup. Ct., Kings County 1998],affd. 267 A.D.2d 395, 700 N.Y.S.2d 723 [1999];People v. Thompson, 177 Misc.2d 803, 678 N.Y.S.2d 845 [Sup. Ct., Kings County 1998] ).
In granting defendant's motion, the Criminal Court acknowledged the existence of signs prohibiting entry into the courtroom in violation of defendant's right to a public trial. For this court to reverse the Criminal Court's order at this stage only to have defendant's conviction ultimately vacated on a subsequent CPL 440.10 motion would defeat the interest of judicial economy. Indeed, several courts have treated a CPL 330.30 motion as a CPL 440.10 motion prior to the entry of judgment, where the interests of justice required it ( see People v. Deblinger, 179 Misc.2d at 37–38, 683 N.Y.S.2d 814 [although CPL 330.30 was not proper vehicle for raising the defendant's claim, court would consider the claim pursuant to CPL 440.10 in the interest of fairness and judicial economy, even though judgment had not been entered]; People v. Thompson, 177 Misc.2d at 808–809, 678 N.Y.S.2d 845 [although CPL 330.30 is improper where claims do not appear on the record, court may exercise its powers under Judiciary Law § 2–b(3) to authorize the making of a premature CPL 440.10 in the interest of judicial economy] ). In those cases, like here, allowing the verdict to stand would leave the defendant without a remedy until after the entry of judgment. Such a result, particularly in this case where the verdict was obtained in clear violation of defendant's right to a public trial, is patently unfair. Thus, under the circumstances of this case, the Criminal Court providently exercised its discretion in setting aside the verdict and ordering a new trial.
Accordingly, I vote to affirm.