Opinion
Argued September 14, 1999
Decided October 14, 1999
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, (Frank Torres, J.).
Kannan Sundaram, New York City, M. Sue Wycoff and Michele S. Maxian for appellant.
Robert T. Johnson, District Attorney of Bronx County, Bronx (Edward L. Schnitzer, Joseph N. Ferdenzi and Allen H. Saperstein of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant was convicted of robbery, reckless endangerment and criminal possession of "a firearm. The issue on this appeal by leave of a Judge of this Court is whether the trial court's refusal to instruct the jury that "the indictment is not evidence of anything" constitutes reversible error.
We conclude that the omission in this case of this instruction does not constitute reversible error. We agree with the Appellate Division that, while the instruction should be given, defendant was not deprived of a fair trial, considering the court's jury instructions in their entirety. The absence from the final charge to the jury of the instruction that the indictment is not evidence — which was given during jury selection — does not warrant a reversal of the conviction in this case. In the whole context here, we also note that the trial court gave ample emphasis in the final jury charge that the jury's verdict must be based on an assessment only of the evidence — which the court summarized — and that the defendant was always protected by the presumption of innocence.
Carter v. Kentucky ( 450 U.S. 288) and Taylor v. Kentucky ( 436 U.S. 478) are distinguishable and therefore do not compel a different result. Lastly, defendant's additional reliance on People v. Newman ( 46 N.Y.2d 126) is misplaced. There, this Court concluded that the trial court's refusal to inform the jury in its charge that the prosecution had the burden of proving every element of the crimes charged beyond a reasonable doubt as specifically mandated by CPL 300.10 (2) was reversible error.
We have considered defendant's other claim and conclude that it is without merit.
Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.
Order affirmed in a memorandum.