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People v. Smith

Appellate Division of the Supreme Court of New York, First Department
Apr 20, 1999
260 A.D.2d 253 (N.Y. App. Div. 1999)

Summary

concluding that the trial court's decision was "a proper exercise of . . . [the court's] power to control the flow of the proceedings in the interest of preventing the morning session of the trial from being wasted"

Summary of this case from Smith v. McGinnis

Opinion

April 20, 1999

Appeal from the Supreme Court, New York County (Jay Gold, J.).


The court's direction that defendant if he chose to testify, was to do so while awaiting the afternoon arrival of defense witnesses was a proper exercise of discretion under all the circumstances ( see, People v. Smith, 166 A.D.2d 385, affd 79 N.Y.2d 779). The court exercised its power to control the flow of the proceedings in the interest of preventing the morning session of the trial from being wasted, and defendant's decision to testify was made with the assistance of counsel ( cf., Brooks. v. Tennessee, 406 U.S. 605). Furthermore, we find that the court's ruling could not have caused defendant any actual prejudice.

The court properly exercised its discretion in determining not to submit to the jury the count of the indictment charging assault in the first degree, a non-inclusory concurrent count ( see, CPL 300.40; Penal Law § 70.25) to avoid distracting the jury with the issue of the extent of the complainant's injuries in a case turning on identity. We note that defendant did not request submission of any lesser included offenses under the attempted murder count, and that the absence of the assault count could not have caused any prejudice.

The court's supplemental instruction on the elements of attempted murder, considered as a whole and in light of the entire trial including the court's main charge, could not have misled the jury to believe that the central issue of identity had disappeared from the case.

Concur — Ellerin, P. J., Rosenberger, Andrias, Saxe and Friedman, JJ.


Summaries of

People v. Smith

Appellate Division of the Supreme Court of New York, First Department
Apr 20, 1999
260 A.D.2d 253 (N.Y. App. Div. 1999)

concluding that the trial court's decision was "a proper exercise of . . . [the court's] power to control the flow of the proceedings in the interest of preventing the morning session of the trial from being wasted"

Summary of this case from Smith v. McGinnis
Case details for

People v. Smith

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KAREEM SMITH, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 20, 1999

Citations

260 A.D.2d 253 (N.Y. App. Div. 1999)
690 N.Y.S.2d 6

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