People v. Price — 144 A.D.2d 1013

Majority

p. 1013

The People of the State of New York, Respondent, v Robert Price, Appellant.

Judgment unanimously affirmed. Memorandum: Defendant’s conviction was based on legally sufficient evidence and was not against the weight of the evidence. We find that the credible evidence provides a valid line of reasoning to support the jury verdict and does not reasonably support a different finding (People v Bleakley, 69 NY2d 490 , 495). Defendant further contends that he was deprived of a fair trial by prosecutorial misconduct. No objection having been raised to a number of these errors, they have not been preserved for our review (People v Dawson, 50 NY2d 311 , 324; People v Rubin, 101 AD2d 71 , 78). Where objections were interposed they were sustained and adequate curative instructions were given, thus dissipating any prejudice (People v Ashwal, 39 NY2d 105 , 111; People v Broady, 5 NY2d 500 , cert denied 361 US 8 ). Additionally, many of the alleged improprieties were within the wide rhetorical bounds granted to the prosecutor to comment upon the evidence or in response to defense counsel’s summation (People v Tardbania, 130 AD2d 954 , affd 72 NY2d 852 ).

It is further contended that reversal is necessitated by errors in the court’s charge. Despite the instructions of this court and other courts to the contrary, the trial court used the inappropriate phrases "reasonable degree of certainty” (People v Hewlett, 133 AD2d 417 ; People v Mitchell, 124 AD2d 977 ; People v La Rosa, 112 AD2d 954 ; People v Morris, 100 AD2d

p. 1014

600 ) and "good sound substantial reason” (People v La Rosa, supra; People v Balian, 49 AD2d 94 ) in its charge of reasonable doubt. However, defense counsel failed to object to these alleged errors; thus, they have not been preserved for our review (CPL 470.05 [2]; People v Thomas, 50 NY2d 467 ). In any event, when viewed as a whole, the court’s, charge properly conveyed to the jury the concept of reasonable doubt. (Appeal from judgment of Onondaga County Court, Cunningham, J. — murder, second degree, and other charges.) Present— Dillon, P. J., Callahan, Denman, Balio and Lawton, JJ.

Cases cited

People v. Bleakley 69 NY2d 490 N.Y. 1987-05-07 at 495 p. 1013
People v. Dawson 50 NY2d 311 N.Y. 1980-05-06 at 324 p. 1013
People v. Rubin 101 AD2d 71 N.Y. App. Div. 1984-04-12 at 78 p. 1013
People v. Ashwal 39 NY2d 105 N.Y. 1976-04-01 at 111 p. 1013
People v. Broady 5 NY2d 500 N.Y. 1959-04-09 p. 1013
Broady v. New York 361 US 8 SCOTUS 1959-10-12 p. 1013
People v. Tardbania 72 NY2d 852 N.Y. 1988-06-30 p. 1013
People v. Hewlett 133 AD2d 417 N.Y. App. Div. 1987-09-21 p. 1013
People v. Mitchell 124 AD2d 977 N.Y. App. Div. 1986-11-10 p. 1013
People v. La Rosa 112 AD2d 954 N.Y. App. Div. 1985-08-05 p. 1013
People v. Balian 49 AD2d 94 N.Y. App. Div. 1975-07-18 p. 1014
People v. Thomas 50 NY2d 467 N.Y. 1980-06-05 p. 1014