People v. Benitez

124 A.D.2d 589, 507 N.Y.S.2d 870, 1986 N.Y. App. Div. LEXIS 61901

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 1986
• Status: Published

Opinion

When this appeal was initially considered by this court, the record failed to reflect whether the Trial Judge had given preliminary instructions to the jury pursuant to CPLR 270.40. The case was remitted by this court to Criminal Term to hear and report on whether the Trial Judge gave preliminary instructions to the jury, including, to the extent possible, the contents of such instructions (see, People v Benitez, supra).

Upon remittitur, Criminal Term determined that a transcript reflecting that preliminary instructions had been given at the defendant’s trial had been found, and that the transcript fairly and accurately represented the events that transpired when the preliminary instructions were given.

Our review of the transcript clearly indicates that the preliminary instructions given to the jury were in accordance with the standards established in CPL 270.40. Therefore, the defendant’s contention that he was denied a fair trial owing to the court’s failure to give preliminary instructions to the jury is wholly without merit.

The defendant’s contention that he was denied a fair trial by questioning by the prosecutor concerning the punishment received for prior convictions is similarly without merit.

We have considered the contention raised by the defendant in his pro se brief and find it to be without merit.

Consequently, the judgment is affirmed. Bracken, J. P., Brown, Rubin and Fiber, JJ., concur.