The defendant was charged with Criminal Possession of a Weapon in the 4th Degree, P.L. 265.01 and Menacing in the 2nd Degree, P.L. 120.14(1) by a Prosecutor's Information dated March 19, 2008. The charges stem from an incident occurring on February 9, 2008 in the Village of Webster.^[FN1] The case was set down for a jury trial

commencing on September 11, 2009. At the conclusion of the People's case defense counsel

made a motion for a trial order of dismissal, pursuant to C.P.L. 290.10(1) and C.P.L. 360.40.

The court reserved on said motion. At the conclusion of the defendant's case defense counsel

renewed her said motion. The court again reserved on said motion and sent the case to the jury

for its deliberation. After deliberating the jury returned a verdict of guilty on both charges.

Defense counsel then made a motion to set aside the verdict, pursuant to C.P.L. 330.30(1). The

court reserved on said motion, giving the attorneys an opportunity to submit briefs on the [*2]

motions in question.

Legal Analysis.

A. Trial Order of dismissal.

Criminal Procedure Law Section 290.10(1) states in pertinent part as follows:

"At the conclusion of the people's case or at the conclusion of all the evidence, the court may, except as provided in subdivision two, upon motion of the defendant, (a) issue a trial order of dismissal,' dismissing any count of an indictment upon the ground that the trial evidence is not legally sufficient to establish the offense charged therein or any lesser included offense, or (b) reserve decision on the motion until after the verdict has been rendered and accepted by the court."

(i) Criminal Possession of a Weapon in the 4th Degree, P.L. 265.01. The model charge

as set out in CTJNY Section 83:13 sets out four elements of the charge of Criminal Possession of

a Weapon in the 4th Degree as same pertains to this case, i.e. (1) That the defendant possessed an

object; (2) That the object possessed was a firearm; (3) That the defendant knowingly possessed the firearm; and (4) That the firearm was operable. [*3]

The people's first witness Giovanni Novelli testified that he was in an altercation with the

defendant outside the Coach Bar in the Village of Webster. That he had held onto the defendant

to prevent an altercation between the defendant and another individual. That upon releasing the

defendant he heard him say "I'm going to get a gun". That witness testified to seeing the

defendant come back to the scene with an object in his hand. The object was identified by

Giovanni Novelli as a firearm, i.e. a handgun. Lastly, the people presented as a witness, Eric

Freemesser of the Monroe County Public Safety Laboratory, who testified that the gun in

question was operable.

Whether or not the elements of the charge were established beyond a reasonable doubt is

not before the court for purposes of the motion for a trial order of dismissal. Instead the court

must determine if the people presented " legally sufficient evidence'" as defined by C.P.L.

70.10(1).^[FN2] In other words the court must determine if the evidence presented established

a prime facie case.A review of the evidence presented by the people in a light most favorable

to the prosecution would require the court to determine that the evidence was in fact legally [*4]

sufficient to establish the charge of Criminal Possession of a Weapon in the 4th Degree, P.L.

265.01. As a result, the defendant's motion for a trial order of dismissal of this charge is hereby

denied.

(ii) Menacing in the 2nd Degree, P.L. 120.14(1). The model charge as set out in CTJNY

Section 54:2 sets out three elements of the charge of Menacing in the Second Degree., i.e. (1)

That the defendant displayed a firearm; (2) That the display of such weapon placed the victim in

reasonable fear of physical injury, serious physical injury, or death; (3) That the defendant

intentionally placed or attempted to place the victim in reasonable fear of physical injury, serious

physical injury, or death.

The people presented evidence that the defendant displayed a handgun. The testimony

was that the defendant intentionally pointed that handgun at a victim, namely Giovanni Novelli.

The victim testified credibly that when the defendant pointed the gun at him he was in fear of his

life. Again, in order to survive a motion for a trial order of dismissal, the people need not

establish their case beyond a reasonable doubt as defined by C.P.L. 70.10(2). Instead the motion

must be denied if the court determines that the evidence was legally sufficient. The evidence [*5]

presented was legally sufficient as set out in C.P.L. 70.10(1)^[FN3] to establish the charge of Menacing

in Second Degree, P.L. 120.14(1). Thus the defendant's trial order of dismissal relative to this

charge is hereby dismissed.

B. Motion to Set Aside Verdict. Criminal Procedure Law Section 330.30 sets out the

grounds for the granting of a motion to set aside a jury verdict.

(i) C.P.L. 330.30(1).

C.P.L. 330.30(1) states as follows:

"At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds: Any 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."

(ii) C.P.L. 330.30(2).

An order to set aside a verdict pursuant to this subsection could be granted only upon a showing of some misconduct outside the presence of the court, that substantially affected a substantial right of the defendant, unknown to the defendant before the jury rendered its verdict. [*6]The defense has not made any allegations relative any issues of misconduct.

(iii) C.P.L. 330.30(3).

An order to set aside a verdict pursuant to this subsection could be granted only upon a

showing that new evidence was discovered after trial, that the defendant would not have

reasonably been able to discover that evidence prior to the completion of the trial and that the

evidence was of such a nature that if presented to the jury it would be probable that the verdict

would have been in the defendant's favor. Peoplev. Rivera (1986) 119 AD2d 517, 501

N.Y.S.2d 38. The defense has not made any allegations of any new evidence in this case.

As previously indicated, the evidence presented by the people in support of the charges

against the defendant was legally sufficient pursuant to C.P.L. 70.10(1) as it pertained to each

and every element of the chargers of Criminal Possession of a Weapon in the 4th Degree, P.L.

265.01 and Menacing in the 2nd Degree, P.L. 120.14(1). Therefore, the defendant's motion to

set aside the verdicts rendered by the jury in this matter, pursuant to C.P.L. 330.30, is hereby

denied.

The case is hereby restored to the disposition calender to set a time for sentencing after a

review of a pre-sentence investigation. This constitutes the decision and order of this court.

Dated: December 11, 2009.

Webster, New York [*7]

___________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice