The opinion of the court was delivered by: Matsumoto, United States District Judge
FOR ELECTRONIC PUBLICATION ONLY
Defendant Tyquan Midyett ("defendant" or "Midyett") moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. (Doc. No. 477, "Def. Rule 33 Letter Motion.") Defendant contends that (i) his right to be present at trial pursuant to Fed. R. Crim. P. 43 was violated on March 2, 2009; and (ii) he was deprived of his right to "properly review" statements of co-conspirators. For the reasons set forth below, defendant's motion is denied.
Rule 33(b)(2) provides in pertinent part that "[a]ny motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty." Fed. R. Crim. P. 33(b)(2). Effective December 1, 2009, Rule 33 was amended to expand the previous deadline for filing a motion for new trial from 7 days to 14 days, and the enabling order accompanying the amendment provides that the amendment shall "govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending." United States Supreme Court Order dated Mar. 26, 2009;*fn1 see also 28 U.S.C. § 2074(a).
Defendant was convicted by a jury on March 12, 2009, before the effective date of December 1, 2009. Even assuming that the 14-day period applies, the instant motion, filed on May 4, 2010, is untimely because it was filed over one year after the March 12, 2009 jury verdict.
"The time limitations specified in Rule 33 are read in conjunction with Rule 45, which establishes how to compute and extend time." United States v. Robinson, 430 F.3d 537, 541 (2d Cir. 2005). Pursuant to Rule 45, defendant may seek an extension of time to file a motion for a new trial provided that defendant does so "before the originally prescribed or previously extended time expires" or "after the time expires if the party failed to act because of excusable neglect." Fed. R. Crim. P. 45(b)(1)(A)-(B). A "finding of excusable neglect is based on consideration of all relevant circumstances, including:
1) the danger of prejudice to the non-moving party; 2) the length of delay and impact on judicial proceedings; 3) the reason for the delay, including whether it was in the reasonable control of the moving party; and 4) whether the moving party acted in good faith." United States v. Polouizzi, No. 06-CR-22, 2010 WL 318265, at *31 (E.D.N.Y. Feb. 11, 2010) (citation omitted).
Although defendant has failed to offer any reason for his delay in moving for a new trial pursuant to Rule 33, the court observes that the instant motion was filed after defendant's Rule 29 motion for acquittal and other post-conviction motions on which the court has issued rulings, and comes 15 days before defendant was scheduled to be sentenced. The court further observes that the factual basis upon which defendant moves for a new trial was known to defendant on March 2, 2009, before his conviction. Under the circumstances, there is no basis to conclude that defendant's delay in seeking a new trial was due to excusable neglect. Thus, defendant's motion for a new trial must be denied as time barred.
Even assuming, arguendo, that defendant's instant Rule 33 motion were timely, it is nevertheless without merit. Subject to the limitation period set forth above, Rule 33 provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). A Rule 33 motion is to be granted "sparingly." United States v. Bell, 584 F.3d 478, 484-85 (2d Cir. 2009) (citation omitted); see also United States v. Dipietro, No. 04-CR-1110, 2009 WL 3711661, at *3 (S.D.N.Y. Nov. 6, 2009) ("A Rule 33 motion is to be granted 'sparingly' and only in 'exceptional circumstances.'") (quoting Bell, 584 F.3d at 484-85). "The test is whether it would be a manifest injustice to let the guilty verdict stand." Id., at *3 (quoting Bell, 584 F.3d at 483).
Defendant contends that his right to be present at trial was violated on March 2, 2009 when the court addressed in defendant's absence certain "legal issues" concerning discovery raised by the government's letter dated March 1, 2009 (Doc. No. 297). (See Def. Rule 33 Letter Motion at 2.) Defendant contends that "even though [his] counsel waived his appearance, the ...