People v. Prato

MARK D. ZUCKERMAN, J. The defendant in this matter, Robert Prato, was, ultimately, charged with two counts of assault in the third degree, one count of criminal mischief in the fourth degree, and one count of resisting arrest (Penal Law § 120.00 [1], [2]; §§ 145.00, 205.30, respectively). Each of these charges arose from the same incident, which transpired on August 9, 1996. Five other individuals (Cassino, Aviles, Marrone, Santiago, and Weglein) were charged with refusal to aid the police officer in his arrest of Mr. Prato at the time and place of that incident, pursuant to Penal Law § 195.10. However, their cases were ordered consolidated, with those five defendants to be tried separately from Mr. Prato. The jury trial of Mr. Prato concluded with his acquittal on both charges of assault, and his conviction of the crimes of criminal mischief in the fourth degree and resisting arrest. Sentencing having been adjourned to permit the submission of the present motion, counsel for the defendant now moves to set aside the guilty verdicts on two grounds: (1) that the prosecutor's refusal at trial to grant immunity to potential defense witnesses (i.e., the above-listed defendants in the "refusal to aid" matter) constituted an abuse of discretion, and (2) that the People failed to turn over to the defense a statement given by prosecution witness Anthony Cassino to the police, thereby violating the Rosario rule. (People v Rosario, 9 NY2d 286.) The court now considers both bases for defendant's motion for relief pursuant to CPL 330.30. "A trial court's power to set aside a verdict is `far more limited' than that granted to an intermediate appellate court on direct appeal. (People v Carter, 63 NY2d 530, 536.)" (People v Ponnapula, 229 AD2d 257, 266.) "While * * * an appellate tribunal ha[s] the power to review the factual record to determine whether a verdict is supported by the weight of the evidence, it is well settled that trial courts sitting with juries, acting as judges of law but not facts, are not empowered under CPL 330.30 to vacate a verdict on the basis of their own assessment of the facts or the weight of the evidence (People v ago (see Practice Commentary for CPL § 240.45 at pages 287-288)." (Preiser, 1997 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 440.10, 1999 Pocket Part, at 96-97.) This court finds Professor Preiser's argument persuasive. In view of that commentary and the language of the Machado case (supra), the court concludes that it, as the trial court, does not possess the requisite authority under CPL 330.30 to vacate the verdict against Mr. Prato, and, accordingly, his motion is denied.