People v. Viera

Appellate Division of the Supreme Court of New York

People v. Viera

160 A.D.2d 480, 554 N.Y.S.2d 38, 1990 N.Y. App. Div. LEXIS 4263

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

DecidedApril 17, 1990

StatusPublished

This text of 160 A.D.2d 480 (People v. Viera) 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. Viera, 160 A.D.2d 480, 554 N.Y.S.2d 38, 1990 N.Y. App. Div. LEXIS 4263 (N.Y. Ct. App. 1990).

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Opinion

—Judgment of the Supreme Court, Bronx County (Lawrence Tonetti, J., at jury trial and sentence), rendered on April 13, 1988, convicting defendant of criminal sale of a controlled substance in the third degree and sentencing him to an indeterminate term of imprisonment of 1 to 3 years, unanimously affirmed.

The instruction to the jury regarding defendant’s failure to testify did not exceed the " ' "plain and simple language of CPL 300.10 (2).” ’ ” (People v Whipple, 155 AD2d 494.) The protested charge did not imply that defendant’s decision not to [481]*481testify was a tactical maneuver rather than the unremarkable exercise of his constitutional rights. No objection was registered to the court’s instructions, but, in any event, we have reviewed this claim and find that any problem with the length of the court’s charge or the court’s use of the word "failed” to describe defendant’s decision not to testify was harmless (see, People v Autry, 75 NY2d 836).

Defendant’s remaining contention, that the prosecutor’s summation contained several objectionable comments, is unpreserved, and were we to consider the argument, in the interests of justice, we would nonetheless affirm, finding defendant’s argument to be without merit. Concur—Murphy, P. J., Ross, Rosenberger, Asch and Ellerin, JJ.

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—Judgment of the Supreme Court, Bronx County (Lawrence Tonetti, J., at jury trial and sentence), rendered on April 13, 1988, convicting defendant of criminal sale of a controlled substance in the third degree and sentencing him to an indeterminate term of imprisonment of 1 to 3 years, unanimously affirmed.

The instruction to the jury regarding defendant’s failure to testify did not exceed the " ' "plain and simple language of CPL 300.10 (2).” ’ ” (People v Whipple, 155 AD2d 494.) The protested charge did not imply that defendant’s decision not to [481]*481testify was a tactical maneuver rather than the unremarkable exercise of his constitutional rights. No objection was registered to the court’s instructions, but, in any event, we have reviewed this claim and find that any problem with the length of the court’s charge or the court’s use of the word "failed” to describe defendant’s decision not to testify was harmless (see, People v Autry, 75 NY2d 836).

Defendant’s remaining contention, that the prosecutor’s summation contained several objectionable comments, is unpreserved, and were we to consider the argument, in the interests of justice, we would nonetheless affirm, finding defendant’s argument to be without merit. Concur—Murphy, P. J., Ross, Rosenberger, Asch and Ellerin, JJ.

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Bluebook (online)

160 A.D.2d 480, 554 N.Y.S.2d 38, 1990 N.Y. App. Div. LEXIS 4263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-viera-nyappdiv-1990.

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