PEOPLE v. TORIBIO (1997)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered March 31, 1995, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the jury charge deprived him of a fair trial is unpreserved for appellate review (see, CPL 470.05[2];  People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932;  People v. Cadorette, 56 N.Y.2d 1007, 1009, 453 N.Y.S.2d 638, 439 N.E.2d 353).   In any event, when viewed in its entirety, the charge delivered by the court explained the concepts of reasonable doubt and the People's burden of proof, and made it clear that the defendant bore no burden (see, People v. Canty, 60 N.Y.2d 830, 469 N.Y.S.2d 693, 457 N.E.2d 800;  People v. Simpson, 178 A.D.2d 500, 576 N.Y.S.2d 826).   The trial court's statement that the jury should determine “where the truth is” neither shifted the burden of proof to the defendant nor diluted the People's burden of proof (People v. Perez, 210 A.D.2d 264, 620 N.Y.S.2d 249;  People v. Griffith, 200 A.D.2d 760, 607 N.Y.S.2d 96;  People v. Jones, 173 A.D.2d 487, 570 N.Y.S.2d 297).

MEMORANDUM BY THE COURT.