People v. Chestnut

160 A.D.2d 717

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 1990
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered January 6, 1987, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

When the trial court charged intentional murder and depraved indifference murder in the conjunctive rather than in the alternative, this was proper under the state of the law as it then existed. Although this charge was later declared to be error (People v Gallagher, 69 NY2d 525), we find it to have been harmless in this case, as the defendant was acquitted of intentional murder (see, People v Thomas, 152 AD2d 612).

We find no error with the court’s failure to charge that a key prosecution witness was an interested witness as a matter of law. The court properly instructed the jury as to how to determine whether or not witnesses were interested and how to evaluate their testimony (see, People v Romero, 136 AD2d 659). We also find the court’s charge sufficiently advised the jury as to the evaluation of identification testimony (see, People v Whalen, 59 NY2d 273; People v Daniels, 88 AD2d 392).

The sentence imposed was not excessive. We have considered the defendant’s remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Sullivan, J. P., Harwood, Balletta and Rosenblatt, JJ., concur.