§ 330.40 Motion to set aside verdict; procedure.\n 1. A motion to set aside a verdict based upon a ground specified in\nsubdivision one of section 330.30 need not be in writing, but the people\nmust be given reasonable notice thereof and an opportunity to appear in\nopposition thereto.\n 2. A motion to set aside a verdict based upon a ground specified in\nsubdivisions two and three of section 330.30 must be made and determined\nas follows:\n (a) The motion must be in writing and upon reasonable notice to the\npeople. The moving papers must contain sworn allegations, whether by\nthe defendant or by another person or persons, of the occurrence or\nexistence of all facts essential to support the motion. Such sworn\nallegations may be based upon personal knowledge of the affiant or upon\ninformation and belief, provided that in the latter event the affiant\nmust state the sources of such information and the grounds of such\nbelief;\n (b) The people may file with the court, and in such case must serve a\ncopy thereof upon the defendant or his counsel, an answer denying or\nadmitting any or all of the allegations of the moving papers;\n (c) After all papers of both parties have been filed, the court must\nconsider the same and, if the motion is determinable pursuant to\nparagraphs (d) or (e), must or may, as therein provided, determine the\nmotion without holding a hearing to resolve questions of fact;\n (d) The court must grant the motion if:\n (i) The moving papers allege a ground constituting legal basis for\nthe motion; and\n (ii) Such papers contain sworn allegations of all facts essential to\nsupport such ground; and\n (iii) All the essential facts are conceded by the people to be true.\n (e) The court may deny the motion if:\n (i) The moving papers do not allege any ground constituting legal\nbasis for the motion; or\n (ii) The moving papers do not contain sworn allegations of all facts\nessential to support the motion.\n (f) If the court does not determine the motion pursuant to paragraphs\n(d) or (e), it must conduct a hearing and make findings of fact\nessential to the determination thereof;\n (g) Upon such a hearing, the defendant has the burden of proving by a\npreponderance of the evidence every fact essential to support the\nmotion.\n
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