People v. Maples

276 A.D.2d 643, 715 N.Y.S.2d 317, 2000 N.Y. App. Div. LEXIS 10348

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 16, 2000
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Pitaro, J.), rendered November 18, 1996, convicting him of murder in the second 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’s contention that the evidence was legally insufficient to establish that he shot and killed the victim is unpreserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245). In any event, viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL, 470.15 [5]).

Although it was unnecessary for the trial court to elaborate upon the language of CPL 300.10 (2) with respect to the defendant’s failure to testify, the defendant was not prejudiced by the trial court’s charge. The charge in substance was consistent with the intent of the statute, was not so lengthy as to prejudicially draw the jury’s attention to the issue, and did not imply that the defendant should have testified or that his decision not to testify was a strategic one (see, People v Cochrane, 248 AD2d 396; People v Williams, 188 AD2d 573, 574; People v Gonzalez, 167 AD2d 556; People v Priester, 162 AD2d 633; People v Davidson, 150 AD2d 717).

The defendant’s remaining contention is without merit. Bracken, J. P., H. Miller, Feuerstein and Smith, JJ., concur.