Opinion
May 18, 1999
Appeal from the Supreme Court, New York County (Charles Tejada, J.).
Defendant's challenge to the court's jury instruction on the definition of burglary is unpreserved, and we decline to review it in the interest of justice. Were we to review this claim, we would find that in this case involving unlawful entry and not unlawful remaining, the court's erroneous references to unlawful remaining could not have misled the jury ( see, People v. Ray, 254 A.D.2d 189, lv denied 92 N.Y.2d 985).
Concur — Rosenberger, J. P., Williams, Rubin, Mazzarelli and Friedman, JJ.
PEOPLE v. HOUGH, 261 A.D.2d 238 [1st Dept 1999] 687 N.Y.S.2d 899 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM HOUGH, Also Known as MARC JACKSON, Appellant. Appellate Division of the Supreme Court of the State of New York First Department May 18, 1999
Appeal from the Supreme Court, New York County (Jeffrey Atlas, J.).
The victim's identification of defendant as one of the persons who robbed his store took place in the store, one month after that initial robbery, when defendant was being arrested for robbing it again. Under these circumstances, the court struck an appropriate balance ( see, People v. Ventimiglia, 52 N.Y.2d 350) by permitting the prosecution to reveal simply that defendant was being arrested for a crime. Moreover, the court's limiting instructions prevented any undue prejudice to defendant.
Defendant did not preserve his challenge to the court's charge on the jury's duty not to draw negative inferences from defendant's failure to testify, and we decline to review it in the interest of justice. Were we to review this claim, we would find that the charge was unnecessarily lengthy but not unduly prejudicial.
The court's supplemental instruction, when read as a whole and with particular reference to the court's admonitions against speculation, was a proper response to inquiries from the deliberating jury concerning a matter not in evidence ( see, People v. Malloy, 55 N.Y.2d 296).
Concur — Rosenberger, J. P., Williams, Rubin, Mazzarelli and Friedman, JJ.