AD4: Legal sufficiency arguments still not preserved unless specific TOD made at end of all proof

People v Saxton, 2006 NY Slip Op 06972 [available here]

People v Smith, 2006 NY Slip Op 06979 [available here]

The Fourth Department continues to interpret People v Hines (97 NY2d 56) strictly, requiring defense counsel to not only make a specific motion for a trial order of dismissal at the end of the People's case, but also requiring that the motion be renewed at the close of all proof. Defense counsel in Saxton was doubly deficient, failing to make the specific argument advanced on appeal and failing to renew his TOD motion at the close of all proof. (Saxton, 2006 NY Slip Op 06972.) The Fourth Department ultimately reversed in Saxton, however, holding it was error for the trial court to summarily deny defense counsel's 330.30 motion where "[t]he sworn allegations in defendant's moving papers that defendant learned after the verdict was rendered that a juror had failed to disclose a past extramarital affair with a witness to the altercation between defendant and the victim required a hearing on the issue whether the juror's alleged misconduct prejudiced a substantial right of defendant." (Saxton, 2006 NY Slip Op 06972.)