PEOPLE v. MORET (2009)

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

The PEOPLE of the State of New York, Respondent, v. Felix MORET, Defendant-Appellant.

Decided: June 30, 2009

MAZZARELLI, J.P., SAXE, CATTERSON, DeGRASSE, ABDUS-SALAAM, JJ.

Steven Banks, The Legal Aid Society, New York (Steven R. Berko of counsel), for appellant. Felix Moret, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Christopher J. Blira-Koessler of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered May 18, 2005, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him to a term of 25 years, unanimously affirmed.

Defendant's challenge to a phrase in the court's charge is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal. The query “who speaks the truth,” a part of an old pattern charge that was superseded by the Criminal Jury Instructions, should be avoided (see e.g. People v. Pippin, 67 A.D.2d 413, 418, 415 N.Y.S.2d 654 [1979] ). However, viewing the main and supplemental charges as a whole, we find no reasonable possibility the jury could have misunderstood this language as reducing the People's burden of proof, shifting that burden, or commenting adversely on defendant's failure to testify.

We perceive no basis for reducing the sentence.

We have considered and rejected defendant's pro se claims.

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