People v. Actie

215 A.D.2d 570, 627 N.Y.S.2d 62, 1995 N.Y. App. Div. LEXIS 5084

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1995
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mastro, J.), rendered February 11, 1993, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the trial court did not err in admitting the testimony regarding the defendant’s previous assault and threat against the victim. The testimony was relevant to the defendant’s motive and intent (see, People v Carver, 183 AD2d 907; People v Hutchinson, 179 AD2d 679, 680).

The defendant’s contention that he is entitled to a new trial because of the trial court’s improper charge to the jury on the presumption of innocence is without merit. The trial court properly instructed the jury in detail that the People had the burden of proving each and every element of the crime charged beyond a reasonable doubt and that the presumption of innocence only ceases if and when the jury determines that the defendant’s guilt was established beyond a reasonable doubt. Although it would have been more prudent for the trial court to instruct the jury that a defendant is presumed innocent "unless the contrary is proved”, rather than "until the contrary is proved” (see, 1 CJI[NY] 6.10, at 246), the charge, considered as a whole, conveyed the proper standards (see, People v Medina, 178 AD2d 177).

The defendant’s remaining contentions, including these raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Miller, J. P., Thompson, Pizzuto and Santucci, JJ., concur.