People v. Roach , 768 N.Y.S.2d 877 ( 2003 )

Appeal from a judgment of Monroe County Court (Geraci, Jr., J.), entered January 11, 2002, convicting defendant after a jury trial of criminal sale of a controlled substance in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from two judgments, each convicting him, after a single jury trial, of one count of criminal sale of a controlled substance in the second degree (Penal Law § 220.41 [1]). Contrary to the contention of defendant, County Court did not err in denying his motion pursuant to CPL 330.30 (3) seeking to set aside the verdict without first conducting a hearing (see People v Corchado, 299 AD2d 843, 843-844 [2002], lv denied 99 NY2d 581 [2003]; cf. People v Nicholson, 222 AD2d 1055, 1056-1057 [1995]). The court reviewed the documentary evidence submitted by defendant in support of his motion and properly determined that the evidence was not “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 People v McCullough, 275 AD2d 1018, 1019 [2000], lv denied 95 NY2d 936 [2000]). Contrary to defendant’s further contention, we conclude that the court’s Sandoval ruling did not constitute an abuse of discretion (see generally People v Hayes, 97 NY2d 203, 207-208 [2002]). The sentence is neither unduly harsh nor severe.

Defendant contends in his pro se supplemental brief that the court erred in denying his motion seeking to dismiss the indictment in appeal No. 1 on the ground that the evidence before the grand jury was legally insufficient. Where, as here, the judgment of conviction is based upon legally sufficient trial evidence, the sufficiency of the evidence before the grand jury is not reviewable (see CPL 210.30 [6]; People v Butler, 300 AD2d 1103, 1104 [2002], lv denied 99 NY2d 613 [2003]). We have reviewed defendant’s remaining contentions in the pro se supplemental brief and conclude that they are without merit. Present—Pigott, Jr., P.J., Hurlbutt, Scudder, Kehoe and Gorski, JJ.