Opinion
KA 01-02132
May 2, 2003.
Appeal from an order of Cayuga County Court (Contiguglia, J.), entered December 18, 2001, which granted defendant's motion and set aside the jury verdict pursuant to CPL 330.30.
JAMES B. VARGASON, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR PLAINTIFF-APPELLANT.
EDDIE ORTIZ, DEFENDANT-RESPONDENT PRO SE.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-RESPONDENT.
PRESENT: GREEN, J.P., PINE, HURLBUTT, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law, the motion is denied, the verdict is reinstated and the matter is remitted to Cayuga County Court for sentencing.
Memorandum:
We agree with the People that County Court erred in granting defendant's motion and setting aside the jury verdict pursuant to CPL 330.30. In granting the motion, the court found that the verdict is against the weight of the evidence. That was error. In deciding a motion pursuant to CPL 330.30, a trial judge is precluded "from reweighing evidence, a factual review" ( People v Ventura, 66 N.Y.2d 693, 695; see People v. Carter, 63 N.Y.2d 530, 536-538; People v. Carthens, 171 A.D.2d 387, 391-392). The verdict could have been set aside pursuant to CPL 330.30 "only if based upon insufficient evidence or evidence which as a matter of law was inadequate to prove guilt beyond a reasonable doubt" ( Carter, 63 N.Y.2d at 537), and that cannot be said of the verdict herein. The jury found defendant guilty of aggravated harassment of an employee by an inmate (Penal Law former 240.32), and the evidence that the liquid that struck the correction officer smelled of urine, together with the other evidence submitted by the People, is legally sufficient to support a conviction of that crime. Consequently, we reverse the order, deny the motion, reinstate the verdict and remit the matter to Cayuga County Court for sentencing.