People v. Davidson , 751 N.Y.S.2d 336 ( 2002 )

Appeal from a judgment of Supreme Court, Monroe County (Mark, J.), entered March 21, 2002, convicting defendant after a jury trial of loitering.

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

Memorandum: On appeal from a judgment convicting him after a jury trial of loitering in violation of subdivision (2) of Penal Law § 240.35, defendant contends that Supreme Court erred in denying his motion pursuant to CPL 330.30 to set aside the verdict based on the alleged unconstitutionality of that subdivision. We conclude that the court properly denied defendant’s motion but erred in deciding the motion on the merits (see People v Davidson, 98 NY2d 738). Defendant’s constitutional challenge was raised for the first time on the motion to set aside the verdict and therefore was not a “ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court” (330.30 [1]). Thus, the “court lacked jurisdiction to address [defendant’s constitutional challenge] in the context of the CPL 330.30 motion” (People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). Present — Pigott, Jr., P.J., Wisner, Scudder, Burns and Gorski, JJ. [See 181 Misc 2d 999.]