Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, May 21, 2012

APPEARANCES OF COUNSEL

Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Sholom J. Twersky of counsel), for appellant. Michael W. Warren, P.C., Brooklyn (Michael W. Warren of counsel), for respondent.

Memorandum.

Ordered that the order is reversed, on the law, defendant's motion to set aside the verdict is denied, the verdict is reinstated and the matter is remitted to the Criminal Court for all further proceedings.

After a bench trial, defendant was found guilty of 10 counts of sexual abuse in the second degree (Penal Law § 130.60), 10 counts of sexual abuse in the third degree (Penal Law § 130.55) and endangering the welfare of a child (Penal Law § 260.10). Prior to sentencing, defendant moved to set aside the verdict on the ground that he was denied the right to a public trial. The motion was supported by the affirmations of two attorneys, who alleged that they had attempted to enter the courtroom during the proceedings but that they had observed a "Do Not Enter" sign posted on the courtroom door, and, thus, they had not entered the courtroom. One of the attorneys further alleged that he was also stopped by a court officer and told not to enter the courtroom. The Criminal Court granted the motion on the ground that defendant had been denied [*2]the right to a public trial.

Pursuant to CPL 330.30 (1), a motion to set aside or modify a verdict or any part thereof may be made upon "[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court." Defendant's CPL 330.30 (1) motion should have been denied by the Criminal Court because the motion was procedurally defective as it was based on a ground which did not appear in the record (see People v Miller, 68 AD3d 1135 [2009]). We note that the Criminal Court did not treat the motion as a "de facto CPL 440.10 motion" (People v Wolf, 98 NY2d 105, 119 {**36 Misc 3d at 56}[2002]). Defendant should have waited until after sentencing before making an appropriate CPL 440.10 motion, in which matters may be raised which do not appear in the record (see People v Rohlehr, 87 AD3d 603 [2011]; People v Ai Jiang, 62 AD3d 515 [2009]). Even if the motion had been treated as a "de facto CPL 440.10 motion" it is not properly before this court, since defendant did not seek leave to appeal from the denial of the motion (see CPL 450.15, 460.15; People v Ai Jiang, 62 AD3d 515 [2009]; People v Phillmore, 9 Misc 3d 126[A], 2005 NY Slip Op 51426[U] [App Term, 2d & 11th Jud Dists 2005]). In view of the foregoing, we do not reach the merits of defendant's motion.

Accordingly, the order is reversed, defendant's motion to set aside the verdict is denied, the verdict is reinstated and the matter is remitted to the Criminal Court for all further proceedings. [*3]

Weston, J.P. (dissenting and voting to affirm the order in the following memorandum). I agree with the majority that since defendant's motion was based on matters outside the record, it was not proper for the court to set aside the verdict pursuant to CPL 330.30 (1) (see People v Wolf, 98 NY2d 105 [2002]). Nevertheless, in the interest of judicial economy, I would treat defendant's motion as a motion to vacate the conviction pursuant to CPL 440.10 and grant leave to appeal from the order denying the motion. Upon doing so, I would affirm.

Although the majority opines that a CPL 440.10 motion cannot be made where, as here, defendant has not been sentenced, I disagree. Judiciary Law § 2-b (3) authorizes a court "to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it." Thus, a court may consider a CPL 330.30 motion as one made under CPL 440.10 "where fairness and judicial economy are not sacrificed" (People v Toland, 2 AD3d 1053, 1055 [2003]; see also People v Deblinger, 179 Misc 2d 35 [Sup Ct, Kings County 1998], affd 267 AD2d 395 [1999]; People v Thompson, 177 Misc 2d 803 [Sup Ct, Kings County 1998]).

In granting defendant's motion, the Criminal Court acknowledged the existence of signs [*4]prohibiting entry into the courtroom in violation of defendant's right to a public trial. For this court to reverse the Criminal Court's order at this stage only to have defendant's conviction ultimately vacated on a subsequent CPL 440.10 motion would defeat the interest of judicial economy. Indeed, several courts have treated a CPL 330.30 motion as a CPL 440.10 motion prior to the entry of judgment, where the{**36 Misc 3d at 57} interests of justice required it (see People v Deblinger, 179 Misc 2d at 37-38 [although CPL 330.30 was not proper vehicle for raising the defendant's claim, court would consider the claim pursuant to CPL 440.10 in the interest of fairness and judicial economy, even though judgment had not been entered]; People v Thompson, 177 Misc 2d at 808-809 [although CPL 330.30 is improper where claims do not appear on the record, court may exercise its powers under Judiciary Law § 2-b (3) to authorize the making of a premature CPL 440.10 in the interest of judicial economy]). In those cases, like here, allowing the verdict to stand would leave the defendant without a remedy until after the entry of judgment. Such a result, particularly in this case where the verdict was obtained in clear violation of defendant's right to a public trial, is patently unfair. Thus, under the circumstances of this case, the Criminal Court providently exercised its discretion in setting aside the verdict and ordering a new trial.

Accordingly, I vote to affirm.

Rios and Aliotta, JJ., concur; Weston, J.P., dissents in a separate memorandum.