CPL 330.30: Reasons that Support a Request to Set Aside a Verdict

Under New York law, a court is allowed to set aside a verdict after conviction but before sentencing only for limited reasons. The defendant must show one of three grounds for a set aside:

  • a ground appearing in the record that requires a reversal or modification of the judgment as a matter of law;
  • during the trial there occurred, out of the presence of the court, improper conduct by a juror or improper conduct by another person in relation to a juror that may have affected a substantial right of the defendant and that was not known to the defendant prior to the verdict; or
  • new evidence has been discovered since the trial that could not have been produced by the defendant at the trial even with due diligence on his part and that is 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.

If the defendant succeeds in showing one of the above, requiring the court to set aside the verdict, the court may dismiss the indictment, information or complaint; order a new trial; or modify the verdict as appropriate. Modification can include entering a judgment against a defendant dismissing one but not all of the charges against the defendant or a entering a judgment for a lesser included offense.

A lesser included offense is a crime that has some but not all of the elements of the more serious crime charged. For example, second-degree felony assault (intentionally causing physical injury) is a lesser included offense of first-degree felony assault (intentionally causing serious physical injury). If the evidence at trial as legally insufficient to show a “serious” physical injury but did show an injury, the court can set aside the verdict of first-degree assault and enter a judgment against the defendant for second-degree assault.

A Ground Appearing in the Record

During a criminal trial, proceedings that occur in the courtroom are recorded. Opening statements, examination and cross-examination of witnesses, and the introduction of evidence are all part of the official record of the trial. If something went wrong during the trial, such as a judge making an incorrect ruling on a defendant’s counsel’s objection to evidence, it would be on the record. Errors that appear on the record may used to set aside a verdict under CPL 330.30(1).

Besides an incorrect ruling on an objection, other bases for a motion to set aside a verdict include ineffective assistance of counsel, denial of the right to counsel, erroneous jury instructions, prosecutorial misconduct, or the legal insufficiency of the evidence against the defendant to support the conviction.

Such a record error would justify setting aside a verdict if the error would require an appellate court to reverse or modify the judgment as “a matter of law.” An appellate court may reverse or modify if it finds that an error of law (not of fact) occurred that may have adversely affected the defendant.

Improper Conduct of a Juror or Related to a Juror

Another basis for a CPL 330.30 set aside involves juror misconduct that occurred outside of the courtroom. If the defendant can show (a) that juror misconduct may have affected a substantial right and (b) that the misconduct was not known to the defendant prior to the verdict, the court may set aside the verdict.

Juror misconduct can include such things as a juror investigating the case through media such as newspapers, television, or the internet; a juror conducting experiments on his or her own to test the evidence; a juror considering evidence outside of what was presented at trial; a juror with special expertise (for instance, a doctor) influencing the other jurors; or a juror having a relationship with or communicating with a prosecution witness. It may also include coercion of a juror into voting for conviction.

When a defendant learns of the misconduct after the verdict is entered but before sentencing, he or she may raise the issue in a motion (under CPL 330.40) and seek to have the verdict set aside.

Discovery of New Evidence

The final basis that would support a court’s set aside of a verdict is the defendant’s discovery of new evidence after conviction. CPL 330.30(3) states that a judge may set aside a verdict if:

  • the defendant discovered new evidence after the trial,
  • the defendant could not have discovered the evidence any earlier even using due diligence, and
  • the evidence creates a probability that had it been produced at the trial, the verdict would have been more favorable to the defendant.

A defendant and his or her counsel must exercise “diligence” in seeking evidence for the trial by, for example, requesting evidence from the prosecution, interviewing witnesses, and obtaining physical evidence that could show that the defendant did not commit the crime with which he or she was charged. In other words, the defendant must investigate with care and persistence all avenues that might lead to relevant evidence. Courts scrutinize the issue of whether the defendant could have discovered the evidence prior to the end of the trial and require the defendant to have been thorough in his or her attempts to locate witnesses and evidence.

But if the prosecution purposefully fails to turn over requested evidence, if a missing witness appears after trial, or if the defendant or his or her counsel learns of the existence of physical evidence only after the trial, the defendant may have grounds for setting aside the verdict.

The mere discovery of new evidence, however, is not enough to set aside a verdict. The defendant must also show that the evidence is such that if it had been presented at trial, there is a probability that the verdict would have been more favorable to the defendant. The defendant does not have to show that the verdict would definitely have been different, he or she need only show that it is probable that the verdict would have been different if the evidence had been introduced at trial.

Likewise, the defendant does not have to show that he or she would have been completely acquitted of all charged crimes. He or she need only show that the outcome would have been more favorable. For instance, if the defendant would have been found guilty of only a lesser included offense to the crime charged, that would be enough to support setting aside the verdict.

  1. CPL 330.30: Reasons that Support a Request to Set Aside a Verdict
  2. CPL 330.40: Procedure to Set Aside a Verdict
  3. Similar Motions

CPL 330.40: Procedure to Set Aside a Verdict

Motion to Set Aside a Verdict

While CPL 330.40(1) requires a defendant to move (request) the court to set aside a verdict, the motion need not be in writing if the basis for the motion is an error at trial that appears on the record (CPL 330.30(1)). It can be made verbally to the court as long as the defense gives the prosecution reasonable notice of the intent to make such a motion and an opportunity to appear in court in opposition to the motion.

If the motion is based on juror misconduct or newly discovered evidence, the motion must be in writing, and the defense must give reasonable notice to the prosecution of the filing of the motion. The motion must include sworn statements (by affidavit), whether by the defendant or by another person, of all facts that support the motion. The sworn allegations may be based on personal knowledge or upon information and belief, in which case the sworn allegation must state the source(s) of such information and the grounds of such belief.

The state may then file an answer to the motion admitting or denying the allegations in the defendant’s motion.

The Court’s Decision

After the motion and answer are filed, the court reviews them and decides whether it can decide the issues without a hearing. CPL 330.40 governs how the court reviews the motion and answer:

  • The court must grant the motion if:
    • the motion states a ground (one of the grounds stated in CPL 330.30) constituting a legal basis for the motion;
    • the papers contain sworn allegations of all facts essential to support the ground; and
    • all the essential facts are conceded by the prosecution to be true.
  • The court may deny the motion if:
    • the motion does not allege or state any ground constituting a legal basis for the motion; or
    • the moving papers do not contain sworn allegations of all facts essential to support the motion.

If the court does not grant or deny the motion as stated above, it must hold a hearing and make findings of fact that are essential to deciding the motion. In such a case, the defendant bears the burden to show by a preponderance of the evidence every fact essential to support the motion; that is, to show that it is more probable than not that the facts alleged to support the motion are true and that these facts are enough to entitle the defendant to have the verdict set aside.

The Court’s Responsibility After Setting Aside a Verdict

When a court grants a defendant’s motion to set aside a verdict for a legal error that occurred on the record, it must take the same legal action that an appellate court would take if it reversed the judgment of the trial court on those grounds. The court’s action depends on the error alleged to have occurred at the trial. If the defendant alleged and the court found, for example, erroneous jury instructions or some other error that prejudiced the defendant, the court can order a new trial. If the defendant alleges and the court finds that the evidence was insufficient to support the verdict against the defendant, it must dismiss the accusatory instrument (the indictment, information, or complaint). Having the charge or charges dismissed is a significant victory for the defendant.

If the court sets aside a verdict for juror misconduct, the court will order a new trial. If the defendant demonstrated that newly discovered evidence would probably have changed the outcome of the trial, the court may order a new trial or, with the prosecution’s consent, enter a judgment on a lesser included offense if it is warranted by the evidence.

  1. CPL 330.30: Reasons that Support a Request to Set Aside a Verdict
  2. CPL 330.40: Procedure to Set Aside a Verdict
  3. Similar Motions

Similar Motions

New York criminal procedure provides for other motions that are similar to those permitted by CPL 330.30 and 330.40. These motions have separate timing and substantive requirements.

  • CPL 280.10 allows a defendant to move the trial court, at any time during the trial, for a mistrial when there is an error or a defect in the proceedings or conduct inside or outside of the courtroom that prejudices the defendant and denies him a fair trial.
  • CPL 290.10 permits a defendant to move the trial court, at the conclusion of the prosecutor’s case or at the conclusion of all the evidence but before the verdict, for a “trial order of dismissal” to dismiss any count in an indictment on the ground that the trial evidence is not legally sufficient to establish the offense or any lesser included offense.
  • CPL 440.10 states that a defendant may move the court at any time after the entry of the judgment (following sentencing) to vacate the judgment based on any one of numerous reasons: the court lacked jurisdiction over the defendant; material evidence at trial was false; material evidence was obtained in violation of the defendant’s constitutional rights; or new evidence was discovered since the entry of judgment.

Other similar post-conviction motions include a motion to set aside the sentence (CPL 440.20) and a motion to vacate the judgment and set aside the sentence (CPL 440.30).

A motion to set aside a verdict before sentencing requires a complex combination of legal and factual proof. However while difficult, if handled appropriately, such a motion can prove to be a powerful tool for getting post-conviction relief. A defendant should not attempt to move forward with a motion to set aside a verdict without the assistance of an experienced and superior attorney. The accomplished team at Spolin Law has received hundreds of successful appellate outcomes and are devoted to helping you seek justice. To learn how we may be able to help you or a loved one, call (512) 883-9831 for a free consultation.