People v. Phoenix
| Decision Date | 10 March 1989 |
| Citation | 540 N.Y.S.2d 211,148 A.D.2d 942 |
| Parties | PEOPLE of the State of New York, Respondent, v. Marion A. PHOENIX, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Gerald T. Barth, by James Maxwell, Syracuse, for appellant. Robert Wildridge, by Edward McQuat, Syracuse, for respondent.
Judgment unanimously affirmed. Memorandum: There is no merit to defendant's claim that the verdict of the jury is not supported by the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672). None of the other issues raised by defendant has been preserved for review (see, CPL 470.05[2] ) and it cannot be said on this record that defendant was deprived of a fair trial (see, CPL 470.15[6][a] ). Were we to consider the issues, we would conclude that the rebuttal evidence offered by the People was properly received (see, Marshall v. Davies, 78 N.Y. 414, 420; People v. Harris, 57 N.Y.2d 335, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. denied sub nom. Harris v. New York, 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803; People v. Wheaton, 148 A.D.2d 931, 539 N.Y.S.2d 169; that the court did not err when it gave a "special" or Allen -type charge to the jury (see, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528); that while the court may have erred in commencing a readback of testimony to the jury in the absence of counsel (see, CPL 310.30), no prejudice to the defendant resulted; and that although the court's charge on the reasonable doubt standard included phrases we have previously criticized (see, People v. Jimenez, 147 A.D.2d 905, 537 N.Y.S.2d 380; People v. Luis, 145 A.D.2d 960, 536 N.Y.S.2d 332; People v. Price, 144 A.D.2d 1013, 535 N.Y.S.2d 281 and cases cited therein), the charge as a whole conveyed the proper standard to the jury. (Appeal from Judgment of Onondaga County Court, Cunningham, J.--Manslaughter, 1st degree.)
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