        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1116
KA 12-00835
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHARLES E. SHELTON, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered April 25, 2012. The judgment convicted
defendant, upon a jury verdict, of assault in the first degree and
driving while intoxicated, a misdemeanor (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of assault in the first degree (Penal Law §
120.10 [1]) and two counts of misdemeanor driving while intoxicated
(Vehicle and Traffic Law § 1192 [2], [3]). The charges stem from an
incident during which defendant used his vehicle to run over the
victim, who sustained serious physical injuries.

     Before sentencing, defendant moved to set aside the verdict
pursuant to CPL 330.30 (1), contending, inter alia, that he was denied
effective assistance of counsel because his former defense attorney
never fully explained the specific nature of a plea offer and never
informed defendant of the possibility that he could be indicted on a
more serious charge or that the more serious charge had a mandatory
determinate term of incarceration. We conclude that County Court
properly denied the motion.

     It is well settled that “[t]he basis for vacating a jury verdict
prior to sentencing is strictly circumscribed by CPL 330.30 to allow
vacatur only if reversal would have been mandated on appeal as a
matter of law” (People v Tillman, 273 AD2d 913, 913, lv denied 95 NY2d
939 [internal quotation marks omitted]; see People v Sheltray, 244
AD2d 854, 854, lv denied 91 NY2d 897). The statute is a limitation on
a trial court’s “jurisdiction” (People v Hines, 97 NY2d 56, 61, rearg
denied 97 NY2d 678; see People v Davidson, 299 AD2d 830, 831, lv
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                                                         KA 12-00835

denied 99 NY2d 613), i.e., the “power” (People v Carter, 63 NY2d 530,
536), or “ ‘authority’ ” to set aside a verdict (Sheltray, 244 AD2d at
854; see People v Adams, 13 AD3d 316, 317, following remittal 52 AD3d
243, lv denied 11 NY3d 829; People v Fai Cheung, 247 AD2d 405, 405, lv
denied 92 NY2d 851).

     It is likewise well settled that a trial court “lack[s] the
authority to consider facts not appearing on the record in determining
[a] defendant’s motion pursuant to CPL 330.30 (1) to set aside the
verdict on the ground, inter alia, of ineffective assistance of
counsel” (People v Green, 92 AD3d 894, 896, lv denied 19 NY3d 961; see
People v Hardy, 49 AD3d 1232, 1233, affd 13 NY3d 805; People v
Griffin, 48 AD3d 1233, 1236, lv denied 10 NY3d 840). Thus, “to the
extent that [a defendant’s motion] concerns matters outside the record
on appeal, the proper procedural vehicle is a motion pursuant to CPL
440.10” (Hardy, 49 AD3d at 1233; see Griffin, 48 AD3d at 1236). Here,
because defendant’s motion “did not raise a ‘ground appearing in the
record’ (CPL 330.30 [1]),” reversal on direct appeal would not have
been mandated as a matter of law, and the court lacked the authority
to grant the motion (Hardy, 49 AD3d at 1233; see Griffin, 48 AD3d at
1236).

     Contrary to defendant’s contention, we conclude that the
prosecutor raised the above-mentioned statutory limitations in
opposition to the motion. Even assuming, arguendo, that he did not
raise them, we conclude that the prosecutor’s failure to assert them
in opposition to the motion could not have bestowed upon the court the
authority to exceed the parameters of CPL 330.30 (1). Defendant
further contends that, because the court did not set forth a legal
reason for denying that part of his motion to set aside the verdict,
we cannot address the statutory limitations without violating People v
Concepcion (17 NY3d 192, 194-195). We reject that contention. The
decision of the Court of Appeals in Concepcion does not limit our
authority to conclude that a motion was properly denied where, as
here, there was no legal basis upon which the court could have granted
the motion.

     With respect to defendant’s remaining contentions, we conclude
that, upon viewing the evidence in light of the elements of the crimes
as charged to the jury (see People v Danielson, 9 NY3d 342, 349), the
verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). “Where, as here, witness
credibility is of paramount importance to the determination of guilt
or innocence, [we] must give ‘[g]reat deference . . . [to the]
fact-finder’s opportunity to view the witnesses, hear the testimony
and observe demeanor’ ” (People v Harris, 15 AD3d 966, 967, lv denied
4 NY3d 831, quoting Bleakley, 69 NY2d at 495). It was for the jury to
determine whether to credit the testimony of the prosecution’s
witnesses, and we see no reason to disturb the jury’s credibility
determination (see id.).

     We further conclude that the court did not err in refusing to
suppress defendant’s oral and written statements to the police. The
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                                                         KA 12-00835

police officers responded to a dispatch call concerning a motor
vehicle accident. Upon arriving at the scene, a group of bystanders
informed the officers that a nearby slow-moving vehicle, in which
defendant was the sole occupant, had run over the victim. After one
officer activated the lights and siren of his police vehicle,
defendant’s vehicle stopped. The officers approached the vehicle,
whereupon they observed an open beer can in a cup holder. One officer
asked defendant, “what happened,” and he responded that he “ran that
guy over.” We agree with the court that, “[a]lthough defendant was
seized within the meaning of the Fourth Amendment to the United States
Constitution and article I, § 12 of the New York State Constitution
during the period of this questioning . . . , he was not, as a matter
of law, in custody at th[at] time for purposes of the need to give
Miranda warnings. When a seizure of a person remains at the stop and
frisk inquiry level and does not constitute a restraint on his or her
freedom of movement of the degree associated with a formal arrest,
Miranda warnings need not be given prior to questioning” (People v
Bennett, 70 NY2d 891, 893-894; see People v Huffman, 41 NY2d 29, 34).
It is well established that “ ‘threshold crime scene inquiries’
designed to clarify the situation and questions that are purely
investigatory in nature do not need to be preceded by Miranda
warnings” (People v Mayerhofer, 283 AD2d 672, 674; see People v
Coffey, 107 AD3d 1047, 1050, lv denied 21 NY3d 1041; People v DeBlase,
142 AD2d 926, 927; People v La Joy, 109 AD2d 916, 918). Our
“determination disposes of defendant’s further [contention] that his
[written] statement to the [officer] was tainted by the alleged
illegality of the [officer’s] initial questioning” (Coffey, 107 AD3d
at 1050; see People v Hennigan, 135 AD2d 1082, 1083).

     Finally, we conclude that the sentence is not unduly harsh or
severe in view of defendant’s prior criminal record and his lack of
remorse.




Entered:   November 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
