PEOPLE v. ARMSTRONG (1997)

Appeal by the People from an order of the Supreme Court, Queens County (Finnegan, J.), dated November 9, 1995, which granted the defendant's motion pursuant to CPL 330.30(1) to set aside a jury verdict convicting him of criminal sale of a controlled substance in the third degree, and granted a new trial.

ORDERED that the order is reversed, on the law, the motion is denied, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.

The trial court granted the defendant's motion to set aside the verdict pursuant to CPL 330.30(1), based solely on the alleged ineffectiveness of trial counsel.   Consequently, any other application for relief on any other basis is not properly before this court (see, CPL 470.15[1] ).  Further, since the facts which formed the basis of the defendant's claim of ineffective assistance of counsel did not appear in the trial record, the trial court erred in granting relief on that basis in the absence of a motion pursuant to CPL 440.10 (see, People v. Grossfeld, 216 A.D.2d 319, 628 N.Y.S.2d 331;  People v. Leka, 209 A.D.2d 723, 619 N.Y.S.2d 144).

MEMORANDUM BY THE COURT.