People v. Swerdlow , 15 A.D.2d 38 ( 1961 )

Per Curiam.

After defendant’s conviction in the Court of Special Sessions for assault in the third degree, he moved before that court for an order in arrest of judgment and for a new trial. The court granted his motion but failed to signify which form of relief was being accorded. Subsequently defendant was tried again and again convicted.

We are in accord that, for the reasons stated in the dissenting opinion, if what Special Sessions granted was defendant’s application to arrest judgment, it acted improperly. Furthermore, as long as the order stood unimpeached, the second trial could not legally be held. We assume, therefore, in the absence of any proof to the contrary, that the court did not do what under the circumstances it lacked the power to do, namely, retry the defendant with an order in arrest of judgment in full force and effect. We believe that what received favorable action was defendant’s application for a new trial. It is quite true that the written notice of motion seeks an order in arrest of judgment only. The minutes of the argument on the motion are not before us, but the order of .the court, while it stated that the motion was granted, did not purport to arrest judgment but instead set aside the verdict of conviction. And it further appears from the colloquy prior to the second trial that a motion was made orally on the argument for a new trial, and it was this motion that was granted.

We are further in accord that no grounds of which the court could take cognizance for granting a new trial were shown and that consequently it was improper. But as there was jurisdiction, the action taken was not a nullity. The defendant, having requested the court to take the improper action, is in no position to complain of the impropriety.

We have examined the record and find that the conviction was amply supported by the evidence. The judgment should be affirmed.