Opinion
May 19, 1994
Appeal from the County Court of Columbia County (Leaman, J.).
On November 7, 1992 defendant fired three shots from a handgun at a man named Jacky Lewis in the City of Hudson, Columbia County, for which conduct he was subsequently indicted on a charge of reckless endangerment in the first degree. Defendant has appealed from the judgment of conviction after a jury trial on the charge.
At the close of proof, defendant moved for a mistrial on the basis of incidents alleged by his attorney to have occurred when jurors had twice observed him sitting in the front seat of a Sheriff's patrol car during the trial. Defendant never identified the specific jurors who allegedly observed him. He failed to offer proof in response to County Court's inquiry as to whether he was handcuffed, or was in "any way being treated in a manner inconsistent with human respect and dignity", or if there was anything inflammatory or prejudicial in the accidental observation. Defense counsel's only response was that the jurors could come to the conclusion that defendant was in custody and therefore might draw the wrong inference from such preconviction incarceration. County Court denied the motion, finding that defendant had failed to raise a threshold question requiring further inquiry. County Court distilled defendant's complaint to the casual observation by several jurors of defendant in the company of the Sheriff. Following the denial of the motion and defendant's failure to respond to the court's specific inquiry, he made no further requests.
Defendant failed to make an offer of proof or even to suggest anything inherently prejudicial in these essentially innocuous and brief inadvertent incidents (see, People v. Harper, 47 N.Y.2d 857; People v. Durgey, 186 A.D.2d 899, 902, lv denied 81 N.Y.2d 788), and neither requested curative instructions nor a voir dire of the jury (see, People v. Vaughn, 175 A.D.2d 414, 415; People v Malinowski, 152 A.D.2d 710, lv denied 74 N.Y.2d 898; People v Rescigno, 152 A.D.2d 853, lv denied 74 N.Y.2d 851). Accordingly, we can reach no conclusion other than that defendant failed to demonstrate that he had been deprived of a fair trial as a result of the limited observations.
Defendant next contends that the charge to the jury concerning the meaning of reasonable doubt contained improper and prejudicial wording. Because he did not object to the charge, however, he has failed to preserve the issue for appeal (see, People v. Jackson, 178 A.D.2d 851, lv denied 79 N.Y.2d 1002). The words that defendant finds offensive are: "One way of stating it is that a doubt of the Defendant's guilt to be a reasonable doubt must be a doubt for which some reason can be given and articulated." Defendant contends that the Court of Appeals has recommended the addition of a proviso to the effect that jurors have no obligation to actually articulate the reason for their doubts (People v. Antommarchi, 80 N.Y.2d 247, 253). We cannot agree that the omission in this case was error. While Antommarchi suggests that it would be a better practice to add the proviso, the charge here is similar to the charge found acceptable in Antommarchi and which has been used for over 100 years (see, supra, at 252). The charge as delivered neither shifts the burden of proof to defendant nor suggested to the jurors that they actually had to articulate any doubts (see, People v. Jackson, 155 A.D.2d 329, affd 76 N.Y.2d 908). Accordingly, we find no error.
Mikoll, J.P., Mercure, Crew III and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed.