People v. Hernandez

208 A.D.2d 766, 618 N.Y.S.2d 541

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Patterson, J.), rendered October 2, 1991, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the trial court improperly diluted and shifted the burden of proof. Initially, it should be noted that the issue was not preserved for appellate review since the defendant failed to object to the specific charge in question (CPL 470.05 [2]). In any event, the court properly instructed the jury, inter alia, that the defendant was presumed innocent and must be given the benefit of the presumption, and that the People had the burden of proving guilt beyond a reasonable doubt. In viewing the charge as a whole, the court’s instructions were proper (see, People v Migliaccio, 77 AD2d 575).

The sentence is not excessive (see, People v Suitte, 90 AD2d 80). Balletta, J. P., Rosenblatt, Miller and Ritter, JJ., concur.