People v. Mitchell

Memorandum: On appeal from a judgment convicting him of manslaughter in the first degree for the stabbing death of Darryl Taylor, defendant primarily contends that the charge of the court to the jury was erroneous and prejudicial and denied him a fair trial. We disagree. While it clearly appears that the trial court erred in using the phrase "reasonable degree of certainty” in explaining the concept of proof beyond a reasonable doubt (see, People v La Rosa, 112 AD2d 954; People v Morris, 100 AD2d 600), the absence of any objection by the defendant constituted a failure to preserve this issue for our review as a matter of law (CPL 470.05 [2]). The error is not one which expressly shifts any burden of proof to the defendant and is subject to the requirement of preservation for appellate review (see, People v Thomas, 50 NY2d 467; see also, People v Ahmed, 66 NY2d 307, 310). A reading of the entire charge convinces us that the concept of reasonable doubt was otherwise properly explained to the jury (see, People v Blackshear, 112 AD2d 1044; People v Fisher, 112 AD2d 378; People v Dee, 106 AD2d 582; People v Griffin, 100 AD2d 659). As the evidence of defendant’s guilt was strong, and the charge, when viewed as a whole, conveyed the proper standard to the jury, the error does not warrant reversal in the interest of justice (CPL 470.15 [6] [a]; see, People v Fisher, supra; People v Dee, supra). We have considered defendant’s remaining contentions and find them to be without merit. All concur, except Lawton J., who dissents and votes to reverse and grant a new trial, in the following memorandum.