People v. Swerdlow

11 N.Y.2d 140 (1962)

The People of the State of New York, Respondent, v. Donald H. Swerdlow, Appellant.

Court of Appeals of the State of New York.

Argued February 26, 1962.

Decided April 5, 1962.

Aaron Samuelson for appellant.

Frank S. Hogan, District Attorney (Daniel J. Sullivan and H. Richard Uviller of counsel), for respondent.

Chief Judge DESMOND and JUDGES DYE, FULD, FROESSEL, VAN VOORHIS, BURKE and FOSTER concur.

*141Per Curiam.

Defendant was convicted of third degree assault. Thereafter his attorney made a motion, as appears from the moving affidavit, "in arrest of judgment and to set aside the verdict as inconsistent with the facts and law" for enumerated reasons.

We read the somewhat confused record as did the courts below that the motion resulted in a determination to set aside the verdict and to grant a new trial, and not in arrest of judgment. There was no power whatever to grant an arrest of judgment in this case (Code Crim. Pro., §§ 467, 331; N. Y. City Crim. Cts. Act, § 31, subd. 4; People v. Jackson, 191 N.Y. 293, 297; People v. Perrin, 170 App. Div. 375, 379; People v. Cully, 167 App. Div. 332, 335). There was power to grant a new trial, but only on the ground of newly discovered evidence (N. Y. City Crim. Cts. Act, § 31, subd. 8). While the new trial was granted upon an improper ground, it afforded defendant a second opportunity to secure an acquittal. Thereupon, on evidence which *142 amply supported a conviction, sentence was suspended. In view of the fact that defendant was in nowise prejudiced, the judgment of conviction should be affirmed.

Judgment affirmed.