People v. Jimenez
| Decision Date | 21 January 1981 |
| Citation | 79 A.D.2d 1012,434 N.Y.S.2d 251 |
| Parties | The PEOPLE, etc., Respondent, v. Juan JIMENEZ, Jr., a/k/a John Lopez, Appellant. |
| Court | New York Supreme Court — Appellate Division |
William E. Hellerstein, New York City (Erica Horwitz, New York City, of counsel), for appellant.
Eugene Gold, Dist. Atty., Brooklyn (Gary Maitland, Asst. Dist. Atty., Brooklyn, of counsel), for respondent.
Before LAZER, J. P., and MANGANO, GIBBONS and GULOTTA, JJ.
MEMORANDUM BY THE COURT.
Cross motions by the parties for reargument of the appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered April 5, 1978, which was decided by order of this court, dated December 29, 1980.
Motion by the District Attorney, granted and cross motion, denied.
Decision and order, both dated December 29, 1980, recalled and vacated and the following decision substituted therefore.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 5, 1978, convicting him of rape in the first degree (two counts) and assault in the second degree, upon a jury verdict, and imposing sentence.
Judgment affirmed.
Defendant asserts on appeal, inter alia, that the trial court erred in neglecting to instruct the jury that evidence of prior convictions may be considered solely on the issue of credibility and he further argues that his successful precharge request to so instruct the jury adequately preserves this error for review. We disagree. The purpose of an objection is to provide the court with an opportunity to cure the defect at a time when the error may readily be corrected. (People v. Robinson, 36 N.Y.2d 224, 228, 367 N.Y.S.2d 208, 326 N.E.2d 784.) Where the accused's request to charge has been denied, the error is adequately preserved, for there the court has been put on notice that it is omitting an instruction which, in defendant's opinion, is appropriate. (See People v. LeMieux, --- N.Y.2d ---, --- N.Y.S.2d ----, --- N.E.2d ---- (Nov. 20, 1980).) In such case, the defendant has afforded the court an opportunity to give the disputed instruction and the court, aware of the request, has declined to so charge. However, as in the case at bar, where the defendant's request to charge is granted but the court inadvertently omits the requested instruction from its charge, it is obligatory upon defendant to lodge a timely objection in order that the court might remedy the omission. In light of the defendant's failure to afford the court...
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