People v. Bebee

Appellate Division of the Supreme Court of New York

People v. Bebee

105 A.D.2d 751, 481 N.Y.S.2d 404, 1984 N.Y. App. Div. LEXIS 20867

Appellate Division of the Supreme Court of the State of New York·Decided November 13, 1984·Published·Cited by 6 cases

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County (Rotker, J.), rendered April 13, 1982, convicting him of robbery in the first degree and criminal use of a firearm in the first degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The complainant’s testimony was properly received into evidence (see People v Morales, 37 NY2d 262; People v Alex, 260 NY 425). Although a police officer’s testimony constituted improper bolstering of the complainant’s statements, there is no significant probability that the jury would have acquitted defendant in the absence of this testimony (see People v Johnson, 57 NY2d 969).

We also note that although the use of the phrase “if your minds are waivering [szc] or the scales are even” in charging the jury as to reasonable doubt is strongly disapproved, the charge, in its entirety, conveyed the appropriate standard of proof (see People v Webb, 97 AD2d 779; People v Thompson, 97 AD2d 554). Therefore, reversal on this ground in the interest of justice is not required.

We find that the sentence imposed was an appropriate exercise of the court’s discretion. Mangano, J. P., Gibbons, O’Connor and Lawrence, JJ., concur.

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Appeal by defendant from a judgment of the Supreme Court, Queens County (Rotker, J.), rendered April 13, 1982, convicting him of robbery in the first degree and criminal use of a firearm in the first degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The complainant’s testimony was properly received into evidence (see People v Morales, 37 NY2d 262; People v Alex, 260 NY 425). Although a police officer’s testimony constituted improper bolstering of the complainant’s statements, there is no significant probability that the jury would have acquitted defendant in the absence of this testimony (see People v Johnson, 57 NY2d 969).

We also note that although the use of the phrase “if your minds are waivering [szc] or the scales are even” in charging the jury as to reasonable doubt is strongly disapproved, the charge, in its entirety, conveyed the appropriate standard of proof (see People v Webb, 97 AD2d 779; People v Thompson, 97 AD2d 554). Therefore, reversal on this ground in the interest of justice is not required.

We find that the sentence imposed was an appropriate exercise of the court’s discretion. Mangano, J. P., Gibbons, O’Connor and Lawrence, JJ., concur.

People v. Bebee, 105 A.D.2d 751, 481 N.Y.S.2d 404, 1984 N.Y. App. Div. LEXIS 20867 (N.Y. Ct. App. 1984).

Pincite

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Opinion

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