§ 330.40 Motion to set aside verdict; procedure.

1. A motion to set aside a verdict based upon a ground specified in
subdivision one of section 330.30 need not be in writing, but the people
must be given reasonable notice thereof and an opportunity to appear in
opposition thereto.

2. A motion to set aside a verdict based upon a ground specified in
subdivisions two and three of section 330.30 must be made and determined
as follows:

(a) The motion must be in writing and upon reasonable notice to the
people. The moving papers must contain sworn allegations, whether by
the defendant or by another person or persons, of the occurrence or
existence of all facts essential to support the motion. Such sworn
allegations may be based upon personal knowledge of the affiant or upon
information and belief, provided that in the latter event the affiant
must state the sources of such information and the grounds of such
belief;

(b) The people may file with the court, and in such case must serve a
copy thereof upon the defendant or his counsel, an answer denying or
admitting any or all of the allegations of the moving papers;

(c) After all papers of both parties have been filed, the court must
consider the same and, if the motion is determinable pursuant to
paragraphs (d) or (e), must or may, as therein provided, determine the
motion without holding a hearing to resolve questions of fact;

(d) The court must grant the motion if:

(i) The moving papers allege a ground constituting legal basis for
the motion; and

(ii) Such papers contain sworn allegations of all facts essential to
support such ground; and

(iii) All the essential facts are conceded by the people to be true.

(e) The court may deny the motion if:

(i) The moving papers do not allege any ground constituting legal
basis for the motion; or

(ii) The moving papers do not contain sworn allegations of all facts
essential to support the motion.

(f) If the court does not determine the motion pursuant to paragraphs
(d) or (e), it must conduct a hearing and make findings of fact
essential to the determination thereof;

(g) Upon such a hearing, the defendant has the burden of proving by a
preponderance of the evidence every fact essential to support the
motion.