People v. Flecha

161 A.D.2d 116, 554 N.Y.S.2d 845, 1990 N.Y. App. Div. LEXIS 4865

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 1990
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Vincent Vitale, J.), rendered July 8, 1987, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree (two counts) and sentencing him as a second felony offender to concurrent indeterminate terms of 5 to 10 years, unanimously affirmed.

On September 22, 1986, defendant was arrested within minutes of selling narcotics to an undercover police officer. Defendant now claims on appeal that he was denied a fair trial by the court’s reference to "reasonable person” in its reasonable doubt charge and the court’s query "who speaks the truth” at the end of its charge. However, since these objections were not raised at trial, they are unpreserved for appellate review (CPL 470.05). Were we to review these issues in the interest of justice, we would nonetheless affirm, since the court’s charge as a whole adequately conveyed the concepts of reasonable doubt and the prosecutor’s burden of proof (People v Coleman, 70 NY2d 817, 819; People v Malloy, 55 NY2d 296, 303).

Furthermore, we are unpersuaded that the sentence imposed was unduly harsh or severe. Taking into account, "among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction”, we perceive no abuse of discretion warranting a reduction in sentence (People v Farrar, 52 NY2d 302, 305). Concur—Murphy, P. J., Sullivan, Milonas, Rosenberger and Asch, JJ.