23.4 - 1. Motion To Set Aside Verdict

• Jurisdiction: New York

1. Motion to Set Aside Verdict

A trial court may set aside a verdict on the following grounds:

a. Any ground appearing in the record that would require reversal or modification as a matter of law by an appellate court on appeal from a judgment of conviction; ³²⁶⁷

b. Juror misconduct or jury tampering, occurring out of the presence of the court, affecting a substantial right and unknown to the defendant prior to the verdict; ³²⁶⁸ or

c. Newly discovered evidence that could not have been produced by the defendant at trial with due diligence and that probably would have changed the verdict. ³²⁶⁹

A motion based on the first ground listed above need not be in writing, but the prosecutor must receive reasonable notice and an opportunity to be heard.³²⁷⁰

The procedure for motions based on the second and third grounds is more complicated. Such motions must be made in writing and contain sworn allegations of all facts essential to support relief.³²⁷¹ If the papers allege sufficient sworn facts and the prosecutor concedes those facts, the court must grant the motion without holding an evidentiary hearing.³²⁷² If the motion papers fail to allege a sufficient ground for relief or to provide sworn factual allegations, the court may deny the motion without a hearing.³²⁷³ Where the papers contain sufficient grounds and sworn facts that are not conceded, however, the court must hold an evidentiary hearing at which the defendant has the burden of proof by a preponderance of the evidence. An order denying a motion to set aside a verdict is not separately appealable but may be reviewed on a direct appeal from the subsequently entered judgment.³²⁷⁴

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Notes:

^[3267] . CPL § 330.30(1). Note the requirement that grounds raised under § 330.30(1) appear on the record and are sufficient for reversal on appeal “as a matter of law.” Under this provision, therefore, the trial court may not set aside the verdict unless the error has been preserved for review on appeal. People v. Satloff, 56 N.Y.2d 745, 452 N.Y.S.2d 12 (1982). Moreover, the trial court cannot set aside a verdict as against the weight of the evidence, since that would involve factual review, People v. Ventura, 66 N.Y.2d 693, 496 N.Y.S.2d 416 (1985), even if the verdict was rendered by the trial court itself without a jury. People v. Carter, 63 N.Y.2d 530, 483 N.Y.S.2d 654 (1984). Nor can the appellate division affirm an order setting aside a verdict under CPL § 330.30 “in the interest of justice.” People v...