People v. Woodside

• Citation: 172 A.D.2d 1052,569 N.Y.S.2d 306
• Parties: PEOPLE of the State of New York, Respondent, v. Gary W. WOODSIDE, Jr., Appellant.
• Decision Date: 26 April 1991
• Court: New York Supreme Court — Appellate Division

Page 306

569 N.Y.S.2d 306

172 A.D.2d 1052

PEOPLE of the State of New York, Respondent, v. Gary W. WOODSIDE, Jr., Appellant.

Supreme Court, Appellate Division,

Fourth Department.

April 26, 1991.

Richard Baumgarten by Louis Rosado, Buffalo, for appellant.

Gary Miles, Watertown, for respondent.

Before CALLAHAN, J.P., and DOERR, GREEN, BALIO and LOWERY, JJ.

MEMORANDUM:

Defendant was convicted of criminally negligent homicide for shooting Lawrence Trawick during the evening of November 4, 1987. On appeal defendant contends that the court erred in failing to instruct the jury that the prosecution had the burden of disproving his alibi defense and by making specific reference to defendant as an interested witness without making similar specific reference to other witnesses. Additionally, defendant contends that the prosecutor's summation remarks deprived him of a fair trial.

Defendant made no specific request for a jury instruction, did not except to the charge as given, and raised no objection during the prosecutor's summation. As a result, the issues raised by defendant have not been preserved for appellate review (see, CPL 470.05[2]; People v. Lipton, 54 N.Y.2d 340, 351, 445 N.Y.S.2d 430, 429 N.E.2d 1059; People v. Dawson, 50 N.Y.2d 311, 324, 428 N.Y.S.2d 914, 406 N.E.2d 771). There is no basis for the exercise of our discretionary power of review. The court adequately informed the jury regarding the People's burden of proof on the alibi defense (see, People v. Azzara, 138 A.D.2d 495, 496, 525 N.Y.S.2d 890, lv. denied 71 N.Y.2d 1023, 530 N.Y.S.2d 558, 526 N.E.2d 50). The court also properly described defendant as an interested witness as a matter of law and set forth the factors the jury should consider in assessing whether other witnesses were interested in the outcome of the trial (see, 1 CJI [NY] 7.03, at 269-270). Although the prosecutor impermissibly impugned the defense, the remarks were not part of a pervasive pattern of misconduct and were not so egregious as to deprive defendant of a fair trial (see, People v. Rosemond, 126 A.D.2d 962, 511 N.Y.S.2d 736, lv. denied 69 N.Y.2d 886, 515 N.Y.S.2d 1034, 507 N.E.2d 1104; People v. Widger, 126 A.D.2d 962, 511 N.Y.S.2d 735, lv. denied 69 N.Y.2d 1011, 517 N.Y.S.2d 1045, 511 N.E.2d 104). Moreover, the court's admonition to the prosecutor and its prompt curative instruction minimized or negated any prejudice to defendant ( see, People v. Panepinto, 161 A.D.2d 1192, 555 N.Y.S.2d 525, lv. denied 76...