THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CHRISTOPHER JONES DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CHRISTOPHER JONES, DEFENDANT–APPELLANT.

KA 07–01369

Decided: June 17, 2011

PRESENT:  SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND MARTOCHE, JJ. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C. AZZARELLI OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, rape in the first degree (Penal Law § 130.35[1] ).   Contrary to defendant's contention, County Court properly denied his post-trial motion pursuant to CPL 330.30(2) seeking to set aside the verdict on the ground of juror misconduct without conducting a hearing (cf.  People v. Rivera, 304 A.D.2d 841).   The moving papers did not contain the necessary “sworn allegations of all facts essential to support the motion” (CPL 330.40 [2][e][ii] ).   Indeed, defendant “do[es] not raise a question of outside influence but, rather, [he] seeks to impeach the verdict by delving into the tenor of the jury's deliberative processes” (People v. Drake, 68 AD3d 1778, 1779, lv denied 14 NY3d 840 [internal quotation marks omitted];  see People v. Gerecke, 34 AD3d 1260, 1262, lv denied 7 NY3d 925, 927).

The contention of defendant that the court erred in refusing to suppress his written statements to a detective is not preserved for our review inasmuch as that contention is based on a ground that was not raised before the suppression court (see People v. Brooks, 26 AD3d 739, 740, lv denied 6 NY3d 846, 7 NY3d 810;  People v. Zeito, 302 A.D.2d 923, lv denied 99 N.Y.2d 634).   Further, defendant did not object to the trial testimony concerning those statements, and his post-trial motion pursuant to CPL 330.30 is insufficient to preserve his contention for our review (see generally People v. Padro, 75 N.Y.2d 820, rearg. denied 75 N.Y.2d 1005, rearg dismissed 81 N.Y.2d 989).   We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Finally, the sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court