People v. Nunez

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: All concur except SULLIVAN; SULLIVAN
• Citation: People v. Nunez, 583 N.Y.S.2d 916, 182 A.D.2d 527 (N.Y. App. Div. 1992)
• Decision Date: 21 April 1992
• Parties: The PEOPLE of the State of New York, Respondent, v. Pedro NUNEZ, a/k/a Julio Marine, a/k/a Pedro Martinez-Nunez, Defendant-Appellant.

Page 916

583 N.Y.S.2d 916

182 A.D.2d 527

The PEOPLE of the State of New York, Respondent, v. Pedro NUNEZ, a/k/a Julio Marine, a/k/a Pedro Martinez-Nunez Defendant-Appellant.

Supreme Court of New York, Appellate Division First Department.

April 21, 1992

Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered May 10, 1990, which convicted defendant after a jury trial of criminal possession of a weapon in the third degree, and sentenced him, as a persistent felony offender, to an indeterminate term of imprisonment of 18 years to life, unanimously affirmed. Defendant was stopped for allegedly driving his car in a reckless fashion on the FDR Drive in Manhattan. As he was stopped, he tossed a gun from the window which was retrieved by a police officer. Defendant failed to raise timely objection to portions of the court's charge at issue. Defendant's claims are unpreserved for review as a matter of law (People v. Autry, 75 N.Y.2d 836, 552 N.Y.S.2d 908, 552 N.E.2d 156; CPL 470.05[2]. Were we to consider them in the interest of justice, we would find them to be without merit as the court's charge did not draw undue attention to defendant's decision not to testify. However, the more advisable practice would be for the court to give the charge as set forth in the Criminal Jury Instructions (People v. Lara, 148 A.D.2d 340, 538 N.Y.S.2d 553, affirmed sub nom. People v. Autry, supra ). We have examined defendant's remaining arguments and likewise find them to be without merit..

All concur except SULLIVAN, J., who concurs in a memorandum as follows:

SULLIVAN, Judge (concurring).

The refusal of this particular court to utilize in a criminal case the standard charge on a host of relatively uncomplicated, standard subjects is a recurring theme, which has, on other occasions, warranted reversal (see, e.g., People v. Garcia, 160 A.D.2d 354, 553 N.Y.S.2d 416, appeal dismissed 76 N.Y.2d 934, 563 N.Y.S.2d 59, 564 N.E.2d 669; People v. Wright, 174 A.D.2d 522, 571 N.Y.S.2d 470 [the "no inference" charge regarding a defendant's decision not to testify]; People v. Rawlins, 166 A.D.2d 64, 569 N.Y.S.2d 635 [credibility charge and circumstantial evidence charge].) Here, on the subject of defendant's decision not to testify, the court, speaking for the defendant, stated, inter alia, "[T]he burden is on the prosecutor, I don't have to aid or in any way support the prosecutor's case and by me not testifying, I tell you I'm not guilty and let the...