People v. Shivers

Appellate Division of the Supreme Court of New York

People v. Shivers

301 A.D.2d 473, 753 N.Y.S.2d 354, 2003 N.Y. App. Div. LEXIS 715

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

DecidedJanuary 30, 2003

StatusPublished

Cited by2 cases

This text of 301 A.D.2d 473 (People v. Shivers) 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. Shivers, 301 A.D.2d 473, 753 N.Y.S.2d 354, 2003 N.Y. App. Div. LEXIS 715 (N.Y. Ct. App. 2003).

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Opinion

—Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered March 5, 1998, convicting defendant, after a jury trial, of robbery in the second degree and sentencing him, as a second felony offender, to a term of 13 years, unanimously affirmed.

While the court’s charge should have included, as requested by defendant, some balancing language conveying the principle that a reasonable doubt could arise from the insufficiency or lack of evidence (see People v Corbin, 214 AD2d 318, lv denied 86 NY2d 780; compare People v Reinoso, 257 AD2d 484, lv denied 93 NY2d 901), the error was harmless in light of the overwhelming proof of defendant’s guilt. Moreover, defendant’s claim that the charge shifted the burden of proof is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court’s charge could not have been interpreted by the jury in that fashion. We would also express our disappointment that our attention once again must be directed to trial courts’ deviation without explanation or, as we see it, justification from the standard and approved Criminal Jury Instructions (see e.g. 1 CJI[NY] 2.51, 6.20; see also CJI[NY]2d Presumption of Innocence; Burden of Proof; Reasonable Doubt).

With suitable limiting instructions, the court properly admit[474]*474ted a statement that was not offered for its truth but to complete the narrative and to explain the actions of the police (see People v Jackson, 298 AD2d 144). As defendant concedes, his Confrontation Clause objection is unpreserved (see People v Maher, 89 NY2d 456, 460 n 1), and we decline to review it in the interest of justice. Were we to review this claim, we would reject it (People v Tosca, 287 AD2d 330, 330-331, affd 98 NY2d 660). Concur — Nardelli, J.P., Tom, Ellerin, Friedman and Mar-low, JJ.

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—Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered March 5, 1998, convicting defendant, after a jury trial, of robbery in the second degree and sentencing him, as a second felony offender, to a term of 13 years, unanimously affirmed.

While the court’s charge should have included, as requested by defendant, some balancing language conveying the principle that a reasonable doubt could arise from the insufficiency or lack of evidence (see People v Corbin, 214 AD2d 318, lv denied 86 NY2d 780; compare People v Reinoso, 257 AD2d 484, lv denied 93 NY2d 901), the error was harmless in light of the overwhelming proof of defendant’s guilt. Moreover, defendant’s claim that the charge shifted the burden of proof is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court’s charge could not have been interpreted by the jury in that fashion. We would also express our disappointment that our attention once again must be directed to trial courts’ deviation without explanation or, as we see it, justification from the standard and approved Criminal Jury Instructions (see e.g. 1 CJI[NY] 2.51, 6.20; see also CJI[NY]2d Presumption of Innocence; Burden of Proof; Reasonable Doubt).

With suitable limiting instructions, the court properly admit[474]*474ted a statement that was not offered for its truth but to complete the narrative and to explain the actions of the police (see People v Jackson, 298 AD2d 144). As defendant concedes, his Confrontation Clause objection is unpreserved (see People v Maher, 89 NY2d 456, 460 n 1), and we decline to review it in the interest of justice. Were we to review this claim, we would reject it (People v Tosca, 287 AD2d 330, 330-331, affd 98 NY2d 660). Concur — Nardelli, J.P., Tom, Ellerin, Friedman and Mar-low, JJ.

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Bluebook (online)

301 A.D.2d 473, 753 N.Y.S.2d 354, 2003 N.Y. App. Div. LEXIS 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-shivers-nyappdiv-2003.

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