People v. Khalek

Appeal by the People from an order of the Supreme Court, Kings County *893(Aiello, J.), entered May 30, 1995, which granted the defendant’s motion to set aside a jury verdict convicting him of sexual abuse in the first degree. By decision and order dated December 16, 1996, this Court reversed the order and reinstated the jury verdict (see, People v Khalek, 234 AD2d 480). On December 2, 1997, the Court of Appeals reversed the order of this Court, granted the defendant a new trial, and remitted the matter to this Court for consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b) (see, People v Khalek, 91 NY2d 838).

Ordered that the order is affirmed.

The Court of Appeals has remitted the matter to this Court for review of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b). However, as the defendant’s conviction was set aside by the trial court, he has not contended that the jury verdict was against the weight of the evidence, nor have the People raised any issues of fact. Under these circumstances, we decline to review the facts in the exercise of our interest of justice jurisdiction (see, People v Colon, 246 AD2d 604; People v Butler, 212 AD2d 540). Sullivan, J. P., Krausman, Florio and McGinity, JJ., concur.