Opinion
April 10, 1978
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 9, 1975, convicting him of attempted murder and manslaughter in the first degree, upon a jury verdict, and imposing sentence. Judgment affirmed. The trial court was correct in denying a defense request for a charge that if the jury failed to believe the testimony of the eyewitness Perez it must return a verdict of not guilty. Instead, the trial court properly instructed the jury that the prosecutor's obligation is to prove its case beyond a reasonable doubt in all aspects. As the trial court aptly observed during the oral argument on the request, the jurors must consider "the totality of the evidence", and not decide the case "on a piecemeal basis". Defendant also argues on appeal that the trial court committed reversible error in directing his attorney to make the subject request to charge in the jury's presence. There is no doubt that it would have been better practice had the trial court entertained the request, heard discussions on the law and rendered its ultimate decision out of the presence of the jury (cf. People v Kuss, 32 N.Y.2d 436, 445). However, under the circumstances, such failure to exclude the jury did not affect any substantial rights of the defendant. The colloquy on the requested charge with respect to Perez' testimony contains little or no legal argument. It is highly unlikely that the request to charge, coupled with the ensuing short colloquy and the trial court's concise and prompt denial, had any more effect on the jury than the numerous objections that are made and decided during any trial (cf. Hamling v United States, 418 U.S. 87). Titone, J.P., Rabin, Shapiro and Cohalan, JJ., concur.