People
v.
Silas

Appellate Division of the Supreme Court of New York, Second DepartmentSep 8, 2003
308 A.D.2d 465 (N.Y. App. Div. 2003)
308 A.D.2d 465764 N.Y.S.2d 193

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2002-03414

Argued June 13, 2003.

September 8, 2003.

Appeal by the People from an order of the County Court, Nassau County (LaPera, J.), entered March 26, 2002, which granted the defendant's motion pursuant to CPL 330.30 to set aside so much of a jury verdict as found him guilty of criminal possession of a weapon in the third degree and ordered a new trial on that charge.

Denis Dillon, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Andrea M. DiGregorio of counsel), for appellant.

Bruce R. Bekritsky, Mineola, N.Y., for respondent.

Before: FRED T. SANTUCCI, J.P., LEO F. McGINITY, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.


DECISION ORDER

ORDERED that the order is reversed, on the law, the defendant's motion is denied, the verdict is reinstated, and the matter is remitted to the County Court, Nassau County, for sentencing on the conviction of criminal possession of a weapon in the third degree.

A trial court is permitted to set aside a verdict only on a ground which, if raised on appeal, would require reversal as a matter of law (see CPL 330.30; People v. Carter, 63 N.Y.2d 530). Therefore, only a claim of error that is properly preserved for appellate review will provide a basis to set aside the verdict (see People v. Patino, 259 A.D.2d 502; People v. Sadowski, 173 A.D.2d 873) . For the defendant to properly preserve his claim that the jury should have been charged with the defense of temporary and innocent possession of a weapon, he was required to raise the claim at trial (see People v. Kouvaras, 197 A.D.2d 638). The defendant failed to do so and the trial court was, therefore, without authority to set aside the verdict on that ground (see People v. Patino, supra).

In any event, even viewing the evidence in the light most favorable to the defendant, there was no reasonable view of the evidence upon which the jury could have found that the defendant had a legal excuse for having the weapon in his possession (see People v. Banks, 76 N.Y.2d 799 ; People v. Kouvaras, supra).

SANTUCCI, J.P., McGINITY, TOWNES and MASTRO, JJ., concur.