The People, etc., respondent, v. Walter Maddox, appellant.

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

The People, etc., respondent, v. Walter Maddox, appellant.

2010–07137 (Ind.No. 08–01697)

Decided: February 07, 2012

PETER B. SKELOS, J.P. THOMAS A. DICKERSON L. PRISCILLA HALL ROBERT J. MILLER, JJ. Stephen J. Pittari, White Plains, N.Y. (Salvatore A. Gaetani of counsel), for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Lois Cullen Valerio and Richard Longworth Hecht of counsel), for respondent.

Submitted—December 9, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Wetzel, J.), rendered June 7, 2010, convicting him of murder in the first degree, murder in the second degree (two counts), predatory sexual assault, rape in the first degree (five counts), assault in the second degree, and criminal sex act in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's convictions stem from three separate incidents in which the defendant committed crimes against three different victims.   The defendant contends that the court erred in failing to give a circumstantial evidence instruction regarding the crimes committed against one of the victims.   With respect to those particular crimes, the evidence against the defendant was entirely circumstantial.   Nonetheless, over the defendant's objection, the court did not give the jury a circumstantial evidence instruction.   Where the evidence against a defendant is entirely circumstantial, the failure to so instruct the jury and to inform the jury that it is required to apply the circumstantial evidence standard is error (see People v. Brian, 84 N.Y.2d 887, 889;  People v. Sanchez, 61 N.Y.2d 1022;  People v. Taylor, 6 AD3d 556, 557).   This, however, is one of those “exceptional” cases (People v. Brian, 84 N.Y.2d at 889) where the error in omitting the circumstantial evidence instruction was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the jury would have acquitted the defendant of the subject crimes if the circumstantial evidence instruction had been given (see People v. Brian, 84 N.Y.2d at 889;  People v. Crimmins, 36 N.Y.2d 230, 241–242).

The defendant's contention that the prosecutor improperly cross-examined a defense witness about his prior bad acts is unpreserved for appellate review (see CPL 470.05[2] ).   In any event, any error in the admission of the challenged testimony was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to his convictions (see People v. Crimmins, 36 N.Y.2d at 241–242).

Contrary to the People's contention, the defendant preserved for appellate review his contention that the court's jury charge failed to adequately instruct the jury as to the burden of proof and presumption of innocence (see CPL 470.05[2];  People v. Fermin, 36 AD3d 933, 934).   The defendant's contention is without merit because the charge, taken as a whole, adequately instructed the jury as to the burden of proof and presumption of innocence (see People v. Bogan, 78 AD3d 855, 855–856;  People v. Pena, 201 A.D.2d 676, 677).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.

SKELOS, J.P., DICKERSON, HALL and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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