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

662
KA 07-01369
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER JONES, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered April 27, 2007. The judgment convicted
defendant, upon a jury verdict, of rape in the first degree, criminal
sexual act in the first degree (two counts), burglary in the second
degree, sexual abuse in the first degree, unlawful imprisonment in the
second degree and menacing in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, rape in the first degree (Penal
Law § 130.35 [1]). Contrary to defendant’s contention, County Court
properly denied his post-trial motion pursuant to CPL 330.30 (2)
seeking to set aside the verdict on the ground of juror misconduct
without conducting a hearing (cf. People v Rivera, 304 AD2d 841). The
moving papers did not contain the necessary “sworn allegations of all
facts essential to support the motion” (CPL 330.40 [2] [e] [ii]).
Indeed, defendant “do[es] not raise a question of outside influence
but, rather, [he] seeks to impeach the verdict by delving into the
tenor of the jury’s deliberative processes” (People v Drake, 68 AD3d
1778, 1779, lv denied 14 NY3d 840 [internal quotation marks omitted];
see People v Gerecke, 34 AD3d 1260, 1262, lv denied 7 NY3d 925, 927).

     The contention of defendant that the court erred in refusing to
suppress his written statements to a detective is not preserved for
our review inasmuch as that contention is based on a ground that was
not raised before the suppression court (see People v Brooks, 26 AD3d
739, 740, lv denied 6 NY3d 846, 7 NY3d 810; People v Zeito, 302 AD2d
923, lv denied 99 NY2d 634). Further, defendant did not object to the
trial testimony concerning those statements, and his post-trial motion
pursuant to CPL 330.30 is insufficient to preserve his contention for
                                 -2-                           662
                                                         KA 07-01369

our review (see generally People v Padro, 75 NY2d 820, rearg denied 75
NY2d 1005, rearg dismissed 81 NY2d 989). We decline to exercise our
power to review defendant’s contention as a matter of discretion in
the interest of justice (see CPL 470.15 [6] [a]).

     Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495). Finally, the
sentence is not unduly harsh or severe.




Entered:   June 17, 2011                        Patricia L. Morgan
                                                Clerk of the Court
