Opinion
May 30, 1997
Present — Green, J.P., Pine, Lawton, Callahan and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him following a jury trial of burglary in the second degree (Penal Law § 140.25) and petit larceny (Penal Law § 155.25), defendant contends that County Court's instruction to the jury that a "reasonable doubt" has "been said to be a doubt that's conformable with sound sense and good judgment" impermissibly reduced the People's burden of proof and deprived defendant of a fair trial. We conclude that there is no merit to defendant's contention. The instruction on reasonable doubt, when viewed as a whole, does not require reversal (see, People v. Fish, 234 A.D.2d 890; People v. Paris, 229 A.D.2d 926, lv denied 88 N.Y.2d 1070). Nevertheless, we advise Trial Judges to adhere to the reasonable doubt charge set forth in 1 CJI(NY) 6.20 in order to prevent problems that arise in instructing juries on reasonable doubt (see, People v. Paris, supra; People v. Miller, 194 A.D.2d 230, lv denied 83 N.Y.2d 913).
Defendant also contends that misconduct by the prosecutor during his summation deprived defendant of a fair trial. Because defendant failed to object to any of the alleged instances of misconduct, he has failed to preserve the issue for our review ( see, CPL 470.05; People v. Bell, 234 A.D.2d 915; People v Pringle, 226 A.D.2d 1072, 1073, lv denied 88 N.Y.2d 940). In any event, defendant's contention is without merit. The prosecutor's comments were in response to defense counsel's summation and were not so egregious that defendant was deprived of his right to a fair trial ( see, People v. Galloway, 54 N.Y.2d 396, 401; People v Robinson, 234 A.D.2d 1009).
There is no merit to the contention of defendant raised in his pro se supplemental brief that he was denied effective assistance of counsel ( see, People v. Baldi, 54 N.Y.2d 137, 147). (Appeal from Judgment of Monroe County Court, Connell, J. — Burglary, 2nd Degree.)