People v. Guzman

246 A.D.2d 390, 666 N.Y.S.2d 430, 1998 N.Y. App. Div. LEXIS 249

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1998
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered March 22, 1995, convicting defendant, after a jury trial, of robbery in the first and second degrees, and sentencing him, as a second felony offender, to concurrent terms of 5V2 to 11 years, and convicting defendant, upon his guilty plea, of bail jumping in the first degree, and sentencing him to a consecutive term of 2 to 4 years, and imposing a mandatory surcharge of $150, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues concerning the reliability of identification testimony were properly presented to the jury, and we see no reason to disturb its determination.

Defendant’s challenge to the court’s single remark near the conclusion of its charge that the jury “should make every effort to come to a verdict which speaks the truth as far as this case is concerned”, thereby diluting the People’s burden of proof, is not preserved for appellate review as a matter of law, and we decline to review it in the interest of justice. Were we to review this claim, we would find that it would not warrant reversal because the charge, viewed as a whole, conveyed the appropriate legal principles concerning the People’s burden of proof (People v Davis, 202 AD2d 325, lv denied 83 NY2d 910; People v Rosa, 187 AD2d 355, 356, lv denied 81 NY2d 892).

Defendant’s challenge to the imposition of the mandatory surcharge is premature (People v Velasquez, 198 AD2d 25, lv denied 82 NY2d 932). We have considered defendant’s other contentions concerning the imposition of the surcharge and find them to be without merit. Concur—Rosenberger, J. P., Williams, Andrias and Colabella, JJ.