People v. Torain

266 A.D.2d 322, 698 N.Y.S.2d 501, 1999 N.Y. App. Div. LEXIS 11296

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.), rendered April 28, 1998, convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and assault in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the court erred by charging the jury that the People did not have the burden to prove motive, and by refusing to charge that the jury could consider motive or lack of motive in their deliberation. While the court erred in failing to instruct the jury on the question of motive or lack of motive in determining the defendant’s guilt or innocence (see, People v Reaves, 30 AD2d 828, affd 26 NY2d 921), under the facts of this case, and in view of the overwhelming evidence of the defendant’s guilt, the failure to so charge in this case was not improper (see, People v Crimmins, 36 NY2d 230; People v McFadyen, 127 AD2d 702; People v Reaves, supra).

The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contention is without merit. S. Miller, J. P., Sullivan, Krausman and H. Miller, JJ., concur.