| People v Maddox |
| 2012 NY Slip Op 00984 [92 AD3d 696] |
| February 7, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Walter Maddox, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Lois Cullen Valerio and RichardLongworth Hecht of counsel), for respondent.
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 thesecond degree (two counts), predatory sexual assault, rape in the first degree (five counts), assaultin the second degree, and criminal sex act in the first degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's convictions stem from three separate incidents in which the defendantcommitted crimes against three different victims. The defendant contends that the court erred infailing to give a circumstantial evidence instruction regarding the crimes committed against oneof the victims. With respect to those particular crimes, the evidence against the defendant wasentirely circumstantial. Nonetheless, over the defendant's objection, the court did not give thejury a circumstantial evidence instruction. Where the evidence against a defendant is entirelycircumstantial, the failure to so instruct the jury and to inform the jury that it is required to applythe circumstantial evidence standard is error (see People v Brian, 84 NY2d 887, 889[1994]; People v Sanchez, 61 NY2d 1022 [1984]; People v Taylor, 6 AD3d 556, 557 [2004]). This, however, is oneof those "exceptional" cases (People v Brian, 84 NY2d at 889) where the error inomitting the circumstantial evidence instruction was harmless, as there was overwhelmingevidence of the defendant's guilt, and no significant probability that the jury would haveacquitted the defendant of the subject crimes if the circumstantial evidence instruction had beengiven (see People v Brian, 84 NY2d at 889; People v Crimmins, 36 NY2d 230,241-242 [1975]).
The defendant's contention that the prosecutor improperly cross-examined a defense witnessabout his prior bad acts is unpreserved for appellate review (see CPL 470.05 [2]). In anyevent, any error in the admission of the challenged testimony was harmless, as there wasoverwhelming evidence of the defendant's guilt, and no significant probability that the errorcontributed to his convictions (see People v Crimmins, 36 NY2d at 241-242).[*2]
Contrary to the People's contention, the defendantpreserved for appellate review his contention that the court's jury charge failed to adequatelyinstruct the jury as to the burden of proof and presumption of innocence (see CPL 470.05[2]; People v Fermin, 36 AD3d933, 934 [2007]). The defendant's contention is without merit because the charge, taken as awhole, adequately instructed the jury as to the burden of proof and presumption of innocence (see People v Bogan, 78 AD3d 855,855-856 [2010]; People v Pena, 201 AD2d 676, 677 [1994]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Skelos, J.P., Dickerson, Hall and Miller, JJ., concur.