PEOPLE v. KELLY (2000)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Mark KELLY, a/k/a Maki Kelly, Defendant-Appellant.

Decided: December 07, 2000

MAZZARELLI, J.P., WALLACH, ANDRIAS, SAXE and BUCKLEY, JJ.

Susan Axelrod, for Respondent. Carl S. Kaplan, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered July 29, 1998, convicting defendant, after a jury trial, of robbery in the first and second degrees, and sentencing him, as a persistent violent felony offender, to concurrent terms of 21 years to life and 18 years to life, respectively, unanimously affirmed.

Although the court's charge contained the disfavored phrase “guilt or innocence”, when viewed as a whole, the charge could not have confused the jury as to the proper burden of proof since the court repeatedly instructed the jury that defendant was presumed innocent and that the People were required to prove his guilt beyond a reasonable doubt (People v. Fields, 87 N.Y.2d 821, 637 N.Y.S.2d 355, 660 N.E.2d 1134).

We perceive no basis for reduction of sentence.

MEMORANDUM DECISION.

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