Opinion
KA 02-00393.
December 31, 2003.
Appeal from a judgment of Monroe County Court (Geraci, Jr., J.), entered January 11, 2002, convicting defendant after a jury trial of criminal sale of a controlled substance in the second degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
LEON ROACH, DEFENDANT-APPELLANT PRO SE.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., HURLBUTT, SCUDDER, KEHOE, 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: Defendant appeals from two judgments, each convicting him, after a single jury trial, of one count of criminal sale of a controlled substance in the second degree (Penal Law § 220.41). Contrary to the contention of defendant, County Court did not err in denying his motion pursuant to CPL 330.30 (3) seeking to set aside the verdict without first conducting a hearing ( see People v. Corchado, 299 A.D.2d 843, 843-844, lv denied 99 N.Y.2d 581; cf. People v. Nicholson, 222 A.D.2d 1055, 1056-1057). The court reviewed the documentary evidence submitted by defendant in support of his motion and properly determined that the evidence was not "of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant" (330.30 [3]; see People v. McCullough, 275 A.D.2d 1018, 1019, lv denied 95 N.Y.2d 936). Contrary to defendant's further contention, we conclude that the court's Sandoval ruling did not constitute an abuse of discretion ( see generally People v. Hayes, 97 N.Y.2d 203, 207-208). The sentence is neither unduly harsh nor severe.
Defendant contends in his pro se supplemental brief that the court erred in denying his motion seeking to dismiss the indictment in appeal No. 1 on the ground that the evidence before the grand jury was legally insufficient. Where, as here, the judgment of conviction is based upon legally sufficient trial evidence, the sufficiency of the evidence before the grand jury is not reviewable ( see CPL 210.30; People v. Butler, 300 A.D.2d 1103, 1104, lv denied 99 N.Y.2d 613). We have reviewed defendant's remaining contentions in the pro se supplemental brief and conclude that they are without merit.