People v. Smith

Appellate Division of the Supreme Court of New York

People v. Smith

170 A.D.2d 1040, 566 N.Y.S.2d 427, 1991 N.Y. App. Div. LEXIS 1811

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

DecidedFebruary 1, 1991

StatusPublished

Cited by1 cases

This text of 170 A.D.2d 1040 (People v. Smith) 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. Smith, 170 A.D.2d 1040, 566 N.Y.S.2d 427, 1991 N.Y. App. Div. LEXIS 1811 (N.Y. Ct. App. 1991).

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Opinion

Judgment unanimously affirmed. Memorandum: Although it was inappropriate for County Court to use the phrase "reasonable degree of certainty” in explaining to the jury the concept of proof beyond a reasonable doubt (see, People v Hewlett, 133 AD2d 417), the absence of any objection by defendant constitutes a failure to preserve that issue for our review (see, CPL 470.05 [2]). Further, reviewing the charge in its entirety, we find that it properly conveyed to the jury the correct rule to apply in arriving at its verdict (see, People v Canty, 60 NY2d 830, 832; People v Jimenez, 147 AD2d 905, lv denied 73 NY2d 978).

The court also erred in instructing the jury, without request, that defendant had a right not to testify and that no unfavorable inference could be drawn from his failure to testify (see, CPL 300.10 [2]; People v Koberstein, 66 NY2d 989, 991; People v Gonzalez, 145 AD2d 923, lv denied 73 NY2d 1015). Proof of defendant’s guilt, however, was overwhelming and the court’s error in giving a no inference charge to the jury was harmless beyond a reasonable doubt (see, People v Mullally, 147 AD2d 904, lv denied 73 NY2d 980; People v Williams, 144 AD2d 1012, 1013, lv denied 73 NY2d 984).

We have reviewed defendant’s remaining contentions and find them to be without merit. (Appeal from Judgment of Onondaga County Court, Cunningham, J.—Robbery, 1st Degree.) Present—Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.

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Judgment unanimously affirmed. Memorandum: Although it was inappropriate for County Court to use the phrase "reasonable degree of certainty” in explaining to the jury the concept of proof beyond a reasonable doubt (see, People v Hewlett, 133 AD2d 417), the absence of any objection by defendant constitutes a failure to preserve that issue for our review (see, CPL 470.05 [2]). Further, reviewing the charge in its entirety, we find that it properly conveyed to the jury the correct rule to apply in arriving at its verdict (see, People v Canty, 60 NY2d 830, 832; People v Jimenez, 147 AD2d 905, lv denied 73 NY2d 978).

The court also erred in instructing the jury, without request, that defendant had a right not to testify and that no unfavorable inference could be drawn from his failure to testify (see, CPL 300.10 [2]; People v Koberstein, 66 NY2d 989, 991; People v Gonzalez, 145 AD2d 923, lv denied 73 NY2d 1015). Proof of defendant’s guilt, however, was overwhelming and the court’s error in giving a no inference charge to the jury was harmless beyond a reasonable doubt (see, People v Mullally, 147 AD2d 904, lv denied 73 NY2d 980; People v Williams, 144 AD2d 1012, 1013, lv denied 73 NY2d 984).

We have reviewed defendant’s remaining contentions and find them to be without merit. (Appeal from Judgment of Onondaga County Court, Cunningham, J.—Robbery, 1st Degree.) Present—Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.

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Bluebook (online)

170 A.D.2d 1040, 566 N.Y.S.2d 427, 1991 N.Y. App. Div. LEXIS 1811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-smith-nyappdiv-1991.

Opinion

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