Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Fourth DepartmentMay 27, 1988
140 A.D.2d 954 (N.Y. App. Div. 1988)

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May 27, 1988

Appeal from the Supreme Court, Monroe County, Bergin, J.

Present — Dillon, P.J., Doerr, Boomer, Lawton and Davis, JJ.

Judgment unanimously affirmed. Memorandum: Defendant maintains on this appeal that the trial court erred in its instruction by referring to the complainant as the victim. Although the court's reference to complainant as the victim was improper (People v Davis, 73 A.D.2d 693), reversal is not warranted because, when viewed as a whole, the charge correctly conveyed to the jury the proper standards to apply in arriving at its decision. (People v Coleman, 70 N.Y.2d 817, 819; People v Richardson, 117 A.D.2d 825, 826, appeal denied 67 N.Y.2d 1056.) Moreover, since the evidence of guilt was overwhelming, and there is no significant probability that but for this improper instruction the jury would have acquitted defendant this error was harmless (People v Crimmins, 36 N.Y.2d 230, 242; People v Mitchell, 72 A.D.2d 920, 921).

Defendant also contends that the trial court erred in refusing his request to record the entire voir dire. While it is better practice upon request to record the voir dire, defendant failed to demonstrate any prejudice; thus, reversal is not mandated (see, People v Pepper, 59 N.Y.2d 353, 358-359; see also, People v Fearon, 13 N.Y.2d 59, 61).

We have reviewed defendant's remaining contention and find it to be without merit.