People v. Custodio

243 A.D.2d 576, 665 N.Y.S.2d 302, 1997 N.Y. App. Div. LEXIS 9759

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 14, 1997
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robinson, J.), rendered January 6, 1995, convicting him of murder in the second degree and burglary in the first degree, upon a jury verdict, and imposing an indeterminate term of 22 years to life imprisonment on the conviction of murder in the second degree and 8Vs to 25 years imprisonment on the conviction of burglary in the first degree. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress certain statements made by him to law enforcement authorities.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence on the conviction of murder in the second degree to 15 years to life; as so modified, the judgment is affirmed.

The defendant has not preserved for appellate review his contentions regarding the court’s instructions to the jury on the presumption of innocence and a defendant’s right not to testify (see, People v Williams, 226 AD2d 406; People v Cahill, 220 AD2d 608). In any event, when viewed as a whole, the court’s charge was proper (see, People v Williams, supra, at 406; People v Actie, 215 AD2d 570).

The defendant’s sentence was excessive to the extent indicated herein.

The defendant’s remaining contentions are without merit. Bracken, J. P., Pizzuto, Friedmann and McGinity, JJ., concur.