Appeal from an order of the Justice Court of the Town of Blooming Grove, Orange County (Stephen J. Smith, J.), dated August 11, 2009. The order granted defendant's motion to set aside the jury verdicts.

ORDERED that the order is reversed, on the law, and the matter is remitted to the Justice Court for a determination de novo of defendant's motion to set aside the jury verdicts after affording the People an opportunity to oppose the motion.

Insofar as is relevant to this appeal, defendant was charged with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). Following a jury trial on June 24, 2009, defendant was found guilty of these charges, after which defense counsel orally moved to set aside the verdicts pursuant to CPL 330.30 (1). The Justice Court set a motion schedule whereby defense counsel agreed to submit a written motion within 30 days, after which the People would submit opposition papers. Without any papers having been submitted, the court granted defendant's motion by order dated August 11, 2009. The instant appeal by the People ensued.

On appeal, the People contend that the Justice Court should not have determined defendant's motion without affording them an opportunity to oppose the motion (see CPL 330.40 [1]). We agree. Accordingly, the order is reversed and the matter is remitted to the Justice Court for a determination de novo of defendant's motion to set aside the jury verdicts after affording the People an opportunity to oppose the motion.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: October 21, 2010