People v. Smith
| Decision Date | 01 February 1991 |
| Citation | 170 A.D.2d 1040,566 N.Y.S.2d 427 |
| Parties | PEOPLE of the State of New York, Respondent, v. Michael L. SMITH, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Gerald T. Barth by Vivian Aquilina, Syracuse, for appellant.
Robert E. Wildridge by James Maxwell, Syracuse, for respondent.
Before DENMAN, J.P., and BOOMER, PINE, LAWTON and DAVIS, JJ.
Although it was inappropriate for County Court to use the phrase "reasonable degree of certainty" in explaining to the jury the concept of proof beyond a reasonable doubt (see, People v. Hewlett, 133 A.D.2d 417, 519 N.Y.S.2d 555), the absence of any objection by defendant constitutes a failure to preserve that issue for our review (see, CPL 470.05[2]. Further, reviewing the charge in its entirety, we find that it properly conveyed to the jury the correct rule to apply in arriving at its verdict (see, People v. Canty, 60 N.Y.2d 830, 832, 469 N.Y.S.2d 693, 457 N.E.2d 800; People v. Jimenez, 147 A.D.2d 905, 537 N.Y.S.2d 380, lv. denied 73 N.Y.2d 978, 540 N.Y.S.2d 1012, 538 N.E.2d 364).
The court also erred in instructing the jury, without request, that defendant had a right not to testify and that no unfavorable inference could be drawn from his failure to testify (see, CPL 300.10[2]; People v. Koberstein, 66 N.Y.2d 989, 991, 499 N.Y.S.2d 379, 489 N.E.2d 1281; People v. Gonzalez, 145 A.D.2d 923, 536 N.Y.S.2d 297, lv. denied 73 N.Y.2d 1015, 541 N.Y.S.2d 769, 539 N.E.2d 597). Proof of defendant's guilt, however, was overwhelming and the court's error in giving a no inference charge to the jury was harmless beyond a reasonable doubt (see, People v. Mullally, 147 A.D.2d 904, 537 N.Y.S.2d 381, lv. denied 73 N.Y.2d 980, 540 N.Y.S.2d 1014, 538 N.E.2d 366; People v. Williams, 144 A.D.2d 1012, 1013, 534 N.Y.S.2d 292, lv. denied 73 N.Y.2d 984, 540 N.Y.S.2d 1018, 538 N.E.2d 370).
We have reviewed defendant's remaining contentions and find them to be without merit.
Judgment unanimously affirmed.
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