People v. Phoenix

Appellate Division of the Supreme Court of New York

People v. Phoenix

148 A.D.2d 942, 540 N.Y.S.2d 211, 1989 N.Y. App. Div. LEXIS 2495

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 10, 1989

StatusPublished

Cited by5 cases

This text of 148 A.D.2d 942 (People v. Phoenix) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Phoenix, 148 A.D.2d 942, 540 N.Y.S.2d 211, 1989 N.Y. App. Div. LEXIS 2495 (N.Y. Ct. App. 1989).

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Opinion

Judgment, unanimously affirmed. Memorandum: There is no merit to defendant’s claim that the verdict of the jury is not supported by the weight of the evidence (see, People v Bleakley, 69 NY2d 490).

None of the other issues raised by defendant has been preserved for review (see, CPL 470.05 [2]) and it cannot be said on this record that defendant was deprived of a fair trial (see, CPL 470.15 [6] [a]). Were we to consider the issues, we would conclude that the rebuttal evidence offered by the People was properly received (see, Marshall v Davies, 78 NY 414, 420; People v Harris, 57 NY2d 335, cert denied 460 US 1047; People v Wheaton, 148 AD2d 931); that the court did not err when it gave a "special” or Allen-type charge to the jury (see, Allen v United States, 164 US 492); that while the court may have erred in commencing a readback of testimony to the jury in the absence of counsel (see, CPL 310.30), no prejudice to the defendant resulted; and that although the court’s charge on the reasonable doubt standard included phrases we have previously criticized (see, People v Jimenez, 147 AD2d 905; People v Luis, 145 AD2d 960; People v Price, 144 AD2d 1013, and cases cited therein), the charge as a whole conveyed the proper standard to the jury. (Appeal from judgment of Onondaga County Court, Cunningham, J. — manslaughter, first degree.) Present — Dillon, P. J., Green, Pine, Balio and Lawton, JJ.

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Judgment, unanimously affirmed. Memorandum: There is no merit to defendant’s claim that the verdict of the jury is not supported by the weight of the evidence (see, People v Bleakley, 69 NY2d 490).

None of the other issues raised by defendant has been preserved for review (see, CPL 470.05 [2]) and it cannot be said on this record that defendant was deprived of a fair trial (see, CPL 470.15 [6] [a]). Were we to consider the issues, we would conclude that the rebuttal evidence offered by the People was properly received (see, Marshall v Davies, 78 NY 414, 420; People v Harris, 57 NY2d 335, cert denied 460 US 1047; People v Wheaton, 148 AD2d 931); that the court did not err when it gave a "special” or Allen-type charge to the jury (see, Allen v United States, 164 US 492); that while the court may have erred in commencing a readback of testimony to the jury in the absence of counsel (see, CPL 310.30), no prejudice to the defendant resulted; and that although the court’s charge on the reasonable doubt standard included phrases we have previously criticized (see, People v Jimenez, 147 AD2d 905; People v Luis, 145 AD2d 960; People v Price, 144 AD2d 1013, and cases cited therein), the charge as a whole conveyed the proper standard to the jury. (Appeal from judgment of Onondaga County Court, Cunningham, J. — manslaughter, first degree.) Present — Dillon, P. J., Green, Pine, Balio and Lawton, JJ.

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Bluebook (online)

148 A.D.2d 942, 540 N.Y.S.2d 211, 1989 N.Y. App. Div. LEXIS 2495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-phoenix-nyappdiv-1989.

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