People v. Graziano

• Decision Date: 26 June 1989
• Citation: 151 A.D.2d 775,543 N.Y.S.2d 107
• Parties: The PEOPLE, etc., Respondent, v. Peter GRAZIANO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 107

543 N.Y.S.2d 107

151 A.D.2d 775

The PEOPLE, etc., Respondent, v. Peter GRAZIANO, Appellant.

Supreme Court, Appellate Division Second Department.

June 26, 1989.

Philip L. Weinstein, New York City (William A. Loeb, of counsel), for appellant.

Peter Graziano, pro se.

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

Before MANGANO, J.P., and BROWN, KUNZEMAN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered May 9, 1986, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends, inter alia, that he was deprived of his right to a fair trial by the trial court's improper participation in the questioning of witnesses and improper jury charge. We disagree.

In order to preserve a claim that a trial court improperly participated in the questioning of witnesses and helped develop the prosecutor's case, counsel must object to the court's interference (see, CPL 470.05[2]; People v. Robinson, 137 A.D.2d 564, 524 N.Y.S.2d 304). While we recognize that the failure to object might be excused where the court's participation is extreme (see, People v. Charleston, 56 N.Y.2d 886, 453 N.Y.S.2d 399, 438 N.E.2d 1114), such was not the case here. The trial court did not elicit incriminating evidence from several witnesses by its questioning, intrude into defense counsel's cross examination of witnesses, lay foundations for the admission of evidence, or convey to the jury his disbelief of a witness (cf., People v. Tucker, 89 A.D.2d 153, 154-157, 455 N.Y.S.2d 1). Nor does the record indicate that objection would have been unavailing (cf., People v. Tucker, supra, at 158, 455 N.Y.S.2d 1).

With respect to the claim of error regarding the court's charge to the jury, we note that any claim of error of law with respect thereto is also unpreserved for appellate review as a matter of law (see, CPL 470.05[2]; People v. Whalen, 59 N.Y.2d 273, 464 N.Y.S.2d 454, 451 N.E.2d 212; People v. Rivera, 135 A.D.2d 755, 522 N.Y.S.2d 659). In any event, the claim of error is without merit. The trial court's reference to a "search for the truth" did not hopelessly confuse the jury's understanding of the prosecutor's burden and the concept of reasonable doubt (People v. Sepulveda, 105 A.D.2d 854, 857, 481 N.Y.S.2d 870). When the instructions are viewed in their entirety (see, People v. Coleman, 70 N.Y.2d 817, 819, 523 N.Y.S.2d 433, 517 N.E.2d 1319; People v. Adams, 69 N.Y.2d 805, 806, 513 N.Y.S.2d 381, 505 N.E.2d 946; People v. Goodfriend, 64 N.Y.2d 695, 697, 485 N.Y.S.2d 519, 474 N.E.2d 1187),...