verdict without defense in New York

1994(People v Vladymir G., 194 AD2d 391 .) Defendant’s claim that the court erred in denying his motion to set aside the verdict without a hearing on the basis that racial prejudice allegedly played a significant role during the jury’s deliberations is unpreserved as defendant never requested a hearing on this issue.

1992Because the jury failed to render a verdict on the second count of the indictment charging defendant with criminal possession of a weapon in the fourth degree, defendant must be deemed to have been acquitted of that charge, and that count of the indictment is dismissed (see, CPL 310.50; People v Thompson, 161 AD2d 1203 ; People v Thompson, 156 AD2d 961 ).

1992Because the jury failed to render a verdict on the second count of the indictment charging defendant with criminal possession of a weapon in the fourth degree, defendant must be deemed to have been acquitted of that charge, and that count of the indictment is dismissed (see, CPL 310.50; People v Thompson, 161 AD2d 1203 ; People v Thompson, 156 AD2d 961 ).

1992The court’s insistence on proceeding to take the verdict without defense counsel deprived defendant of his right to assistance of counsel (see, People v Felder, 47 NY2d 287, 296 ).

1990Defendant’s allegations of ineffective assistance of counsel were insufficient to require a hearing (cf., People v Miller, 144 AD2d 867 ).

1989The defendant’s claim that the trial court improperly denied his motion to set aside the verdict without a hearing has been raised and found meritless on the appeals of his two codefendants (see, People v Taylor, 131 AD2d 708, 709 , Iv denied 70 NY2d 938 ; People v Bryant, 123 AD2d 436, 437 ).

1989The defendant’s claim that the trial court improperly denied his motion to set aside the verdict without a hearing has been raised and found meritless on the appeals of his two codefendants (see, People v Taylor, 131 AD2d 708, 709 , Iv denied 70 NY2d 938 ; People v Bryant, 123 AD2d 436, 437 ).

1986As the defendant failed to object or apply for relief from the verdict based upon the claim now raised upon appeal, he failed to preserve any error of law in that regard for appellate review (see, People v Thomas, 50 NY2d 467 ; People v Patterson, 39 NY2d 288 , affd 432 US 197 ; CPL 470.05 [2]).

1986As the defendant failed to object or apply for relief from the verdict based upon the claim now raised upon appeal, he failed to preserve any error of law in that regard for appellate review (see, People v Thomas, 50 NY2d 467 ; People v Patterson, 39 NY2d 288 , affd 432 US 197 ; CPL 470.05 [2]).

1986As the defendant failed to object or apply for relief from the verdict based upon the claim now raised upon appeal, he failed to preserve any error of law in that regard for appellate review (see, People v Thomas, 50 NY2d 467 ; People v Patterson, 39 NY2d 288 , affd 432 US 197 ; CPL 470.05 [2]).

1973We now come to the question of whether the court should apply the rule of Pate (supra) so as to set aside the verdict without a hearing or whether, in order to decide the defendant’s application, a hearing should have been held to determine the defendant’s mental capacity during trial.

1897In Wheeler v. Sweet ( 137 N. Y. 435 ) it was held that instructions by the trial court, in the absence of the plaintiffs and their counsel, which were erroneous and adverse to the plaintiffs upon a material point, might be made the foundation for setting aside the verdict without an exception being taken to such instructions.