People v. Phoenix

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

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.