People v. Battles

• Decision Date: 20 June 1988
• Citation: 141 A.D.2d 748,529 N.Y.S.2d 1013
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., Respondent, v. Fred BATTLES, Appellant.

Page 1013

529 N.Y.S.2d 1013

141 A.D.2d 748

The PEOPLE, etc., Respondent, v. Fred BATTLES, Appellant.

Supreme Court of New York, Appellate Division Second Department.

June 20, 1988

Philip L. Weinstein, New York City (Ellen L. Schutz, of counsel), for appellant. Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Nikki Kowalski and Janet M. Berk, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldman, J.), rendered May 17, 1985, convicting him of burglary in the first degree, grand larceny in the third degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant claims that his conviction for burglary in the first degree should be reversed because the trial court failed to apprise the jury of the factors delineated in People v. Gladman, 41 N.Y.2d 123, 129, 390 N.Y.S.2d 912, 359 N.E.2d 420. According to the defendant, this omission prevented the jury from making a proper determination as to whether he used or threatened the immediate use of a knife in the "immediate flight" from the crime scene (see, Penal Law § 140.30). However, because the defendant failed to raise that claim at trial, it is unpreserved for appellate review ( see, People v. Balls, 69 N.Y.2d 641, 511 N.Y.S.2d 586, 503 N.E.2d 1017; CPL 470.05[2] ). In any event, any error in this regard was harmless under the facts of the case. The defendant's further contention that the submission of verdict sheets to the jury deprived him of a fair trial is also unpreserved for appellate review ( see, People v. Monroe, 135 A.D.2d 741, 522 N.Y.S.2d 643). However, that contention is without merit ( see, People v. Fields, 134 A.D.2d 365, 520 N.Y.S.2d 842). The defendant argues that he was deprived of Rosario material at his trial ( see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, rearg. denied 9 N.Y.2d 908, 216 N.Y.S.2d 1025, 176 N.E.2d 111, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64). However, the record in this case is inadequate to make a determination as to that issue, which may be raised by way of a motion pursuant to CPL 440.10 ( see, People v. Drummond, 99 A.D.2d 760, 471 N.Y.S.2d 679; People v. Sergi, 96 A.D.2d 911, 466 N.Y.S.2d 93). Finally, under the circumstances of this case, there is no reason to disturb the sentence imposed by the trial court ( see, People v. Farrar, 52 N.Y.2d 302,...