People v. Candelario

• Decision Date: 30 May 1989
• Citation: 542 N.Y.S.2d 222,150 A.D.2d 791
• Parties: The PEOPLE, etc., Respondent, v. William CANDELARIO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 222

542 N.Y.S.2d 222

150 A.D.2d 791

The PEOPLE, etc., Respondent, v. William CANDELARIO, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 30, 1989.

Philip L. Weinstein, New York City (Judith Preble, of counsel; Gino Renda, on the brief), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael Gore and Lindsay Brown, of counsel), for respondent.

Before BRACKEN, J.P., and SULLIVAN, BALLETTA, and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Moskowitz, J.), rendered June 17, 1987, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On appeal, the defendant contends that he was denied a fair trial by the court's failure to instruct the jury on circumstantial evidence. Where, as here, the defendant fails to request a circumstantial evidence charge and makes no objection to the charge as delivered, any issue of law with respect to the contention is not preserved for appellate review (see, CPL 470.05[2]; People v. Willis, 107 A.D.2d 830, 484 N.Y.S.2d 669). In any event, there was direct evidence of the defendant's guilt, to wit, a statement made by the defendant to his brother-in-law at the time of the crime (see, People v. Rumble, 45 N.Y.2d 879, 410 N.Y.S.2d 806, 383 N.E.2d 108; People v. Samuel, 138 A.D.2d 543, 525 N.Y.S.2d 918). As the prosecution's case did not rest solely on circumstantial evidence, the court did not err by failing to give a circumstantial evidence charge (see, People v. Johnson, 65 N.Y.2d 556, 561, 493 N.Y.S.2d 445, 483 N.E.2d 120, rearg. denied 66 N.Y.2d 759, 497 N.Y.S.2d 1029, 488 N.E.2d 118; People v. Licitra, 47 N.Y.2d 554, 419 N.Y.S.2d 461, 393 N.E.2d 456, rearg. denied 53 N.Y.2d 938, 440 N.Y.S.2d 1028, 423 N.E.2d 415).

The defendant also contends that the court's instructions with respect to his claim of accident improperly shifted the burden of proof to him because it did not unequivocally convey to the jury that the burden of proof remained with the People. Contrary to the defendant's assertion, the defense counsel did not timely object to the charge as given, nor did he move for a mistrial on the ground that the jury instructions were erroneous. Rather, it was the defense counsel who supplied the court with the words of the charge in his written request. This amounts to a waiver of appellate review of the defendant's claim (see, People v. Shaffer, 66 N.Y.2d 663, 495 N.Y.S.2d 965, 486 N.E.2d 823; People...