People v McNerney (Kevin)

[*1] People v McNerney (Kevin) 2009 NY Slip Op 51260(U) [24 Misc 3d 127(A)] Decided on June 16, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 16, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ
2008-1008 N CR.

The People of the State of New York, Respondent,

against

Kevin McNerney, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Norman St. George, J.), entered April 25, 2008. The judgment convicted defendant, upon a jury verdict, of aggravated unlicensed operation of a motor vehicle in the third degree.

Judgment of conviction affirmed.

In February 2006, defendant was charged in separate accusatory instruments with several violations of the Vehicle and Traffic Law. Insofar as relevant to this appeal,
defendant was convicted, following a jury trial, of aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]). Prior to sentencing, defendant moved, pursuant to CPL 330.30 (1) and (3), to set aside
the verdict and dismiss the accusatory instrument or, in the alternative, for a new trial. The District Court denied the motion, and defendant was subsequently sentenced. On appeal, defendant contends that the People failed to prove the knowledge element of the offense and that, in any event, the verdict should be set aside, and the accusatory instrument dismissed, because the Department of Motor Vehicles subsequently determined that the suspension of defendant's driving privilege was improper and issued a restoration notice which restored his privilege.

Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review since defense counsel never made any specific objection at trial regarding the People's alleged failure to prove the knowledge element (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable to the People (see People [*2]v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of aggravated unlicensed operation of a motor vehicle in the third degree beyond a reasonable doubt.

With regard to that part of defendant's motion which sought to set aside the verdict, pursuant to CPL 330.30 (1), on the ground that the People had failed to satisfy the knowledge element of aggravated harassment in the third degree, this issue, as previously noted, is unpreserved for appellate review (see CPL 470.05 [2]; Gray, 86 NY2d 10). Thus, the alleged error is "not of the type that, if raised on appeal, would require a reversal . . . as a matter of law' (CPL 330.30 [1]; see also CPL 470.15 [4])" (People v Thomas, 38 AD3d 1134, 1136 [2007]). Defendant's claim is therefore not cognizable on a motion pursuant to CPL 330.30 (1) (Thomas at 1136). Consequently, we leave undisturbed the District Court's denial of this portion of defendant's motion.

With respect to that part of defendant's motion which sought to set aside the verdict pursuant to CPL 330.30 (3), it was incumbent upon defendant to show, by a preponderance of the evidence (see CPL 330.40 [2] [g]), the discovery of new evidence "of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant" (CPL 330.30 [3]; see also People v Salemi, 309 NY 208, 215-216 [1955]). The evidence defendant submitted in support of his motion consisted, inter alia, of a copy of a restoration notice which stated that the "suspension order of your registration and license plates has been rescinded," but defendant submitted no evidence that the order suspending his driving privilege had been rescinded. Thus, he failed to show that the alleged new evidence would have been likely to affect the verdict. Consequently, we find that the trial court properly denied defendant's CPL 330.30 motion.

Accordingly, the judgment of conviction is affirmed.

Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 16, 2009