People v. Pollock , 412 N.Y.S.2d 12 ( 1979 )

— Judgment, Supreme Court, New York County, entered June 24, 1976, convicting the defendants of the criminal sale of a controlled substance in the first degree (Penal Law, § 220.43), criminal possession of a controlled substance in the first degree (Penal Law, § 220.21), criminal possession of a controlled substance in the third degree (Penal Law, § 220.16) and conspiracy in the first degree (Penal Law, § 105.16), and sentencing them to indeterminate terms of imprisonment of from 15 years to life for the criminal sale of a controlled substance in the first degree and for criminal possession of a controlled substance in the first degree, and to lesser concurrent sentences on the other charges, affirmed. The appeal from the order of June 24, 1976, denying the presentence motion to set aside the verdict pursuant to CPL 330.30 (subd 3) is dismissed as subsumed in the judgment. Order entered February 1, 1977, which denied the motion to vacate the judgment pursuant to CPL 440.10 (subd 1, par [g]), reversed, on the law and as a matter of discretion in the interest of justice, and the matter remanded for a hearing. Following verdict, but prior to sentencing, the defendants moved pursuant to CPL 330.30 (subd 3) to set aside the verdict on the ground of newly discovered evidence. No separate appeal lies from an order denying a motion to set aside a verdict, although the determination of the motion is reviewed on appeal from the judgment, People v La Rocca (37 AD2d 974) (cf. People v White, 57 AD2d 536), and so the appeal from the order of June 24, 1976 denying the motion to set aside the verdict should be dismissed. Defendants herein, together with a co-defendant, Robert Reyes, were jointly indicted and charged with the sale of a controlled substance in the first degree and related crimes arising from the sale of a substantial amount of cocaine to an undercover detective. Prior to the trial, Reyes, due to illness, was granted a severance. At the trial of the defendants herein he invoked the privilege against self incrimination. At his own trial, he was acquitted. There was sufficient evidence beyond a reasonable doubt to convict the defendants herein, and we have examined the points raised by the defendants and find no merit therein. However, the defendants rely on Reyes’ testimony at his own trial and his now willingness to testify at a retrial of the defendants on their motion to vacate the judgment pursuant to CPL 440.10 (subd 1, par [g]). We believe that a hearing should be held with respect thereto, and we remand for that purpose. Concur — Kupferman, J. P., Silverman and Fein, JJ.