People v. Swain

Appellate Division of the Supreme Court of New York

People v. Swain

126 A.D.2d 763, 511 N.Y.S.2d 142, 1987 N.Y. App. Div. LEXIS 41925

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

DecidedJanuary 26, 1987

StatusPublished

Cited by2 cases

This text of 126 A.D.2d 763 (People v. Swain) 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. Swain, 126 A.D.2d 763, 511 N.Y.S.2d 142, 1987 N.Y. App. Div. LEXIS 41925 (N.Y. Ct. App. 1987).

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Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Glass, J.), rendered November 2, 1983, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

There was sufficient evidence presented at the trial from which the jury could infer that the defendant intended to commit a crime inside the premises, particularly in view of the circumstances surrounding the break in (see, People v Barnes, 50 NY2d 375, 381; People v Mackey, 49 NY2d 274, 280; People v Gilligan, 42 NY2d 969).

We have frequently condemned the language which the court used in its instruction on reasonable doubt (see, e.g., People v Smith, 121 AD2d 411; People v Fisher, 112 AD2d 378; People v Harvey, 111 AD2d 185). However in the case at bar a new trial is not warranted since the error of law has not been preserved for our review (see, CPL 470.05 [2]; People v Martinez, 118 AD2d 661), and, moreover, the charge as a whole adequately conveyed to the jury the appropriate burden of proof (see, People v Samuels, 121 AD2d 751; People v Valdivia, 108 AD2d 885). Mollen, P. J., Thompson, Weinstein and Rubin, JJ., concur.

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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Glass, J.), rendered November 2, 1983, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

There was sufficient evidence presented at the trial from which the jury could infer that the defendant intended to commit a crime inside the premises, particularly in view of the circumstances surrounding the break in (see, People v Barnes, 50 NY2d 375, 381; People v Mackey, 49 NY2d 274, 280; People v Gilligan, 42 NY2d 969).

We have frequently condemned the language which the court used in its instruction on reasonable doubt (see, e.g., People v Smith, 121 AD2d 411; People v Fisher, 112 AD2d 378; People v Harvey, 111 AD2d 185). However in the case at bar a new trial is not warranted since the error of law has not been preserved for our review (see, CPL 470.05 [2]; People v Martinez, 118 AD2d 661), and, moreover, the charge as a whole adequately conveyed to the jury the appropriate burden of proof (see, People v Samuels, 121 AD2d 751; People v Valdivia, 108 AD2d 885). Mollen, P. J., Thompson, Weinstein and Rubin, JJ., concur.

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Bluebook (online)

126 A.D.2d 763, 511 N.Y.S.2d 142, 1987 N.Y. App. Div. LEXIS 41925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-swain-nyappdiv-1987.

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