THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
WAYNE GREAVES, Appellant.
Court of Appeals of the State of New York.
Argued September 14, 1999. Decided October 14, 1999.Kannan Sundaram, New York City, M. Sue Wycoff and Michele S. Maxian for appellant.
Robert T. Johnson, District Attorney of Bronx County, Bronx (Edward L. Schnitzer, Joseph N. Ferdenzi and Allen H. Saperstein of counsel), for respondent.
Before: Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant was convicted of robbery, reckless endangerment and criminal possession of a firearm. The issue on this appeal by leave of a Judge of this Court is whether the trial court's refusal to instruct the jury that "the indictment is not evidence of anything" constitutes reversible error.
*776 We conclude that the omission in this case of this instruction does not constitute reversible error. We agree with the Appellate Division that, while the instruction should be given, defendant was not deprived of a fair trial, considering the court's jury instructions in their entirety. The absence from the final charge to the jury of the instruction that the indictment is not evidencewhich was given during jury selectiondoes not warrant a reversal of the conviction in this case. In the whole context here, we also note that the trial court gave ample emphasis in the final jury charge that the jury's verdict must be based on an assessment only of the evidencewhich the court summarizedand that the defendant was always protected by the presumption of innocence.
Carter v Kentucky (450 U.S. 288) and Taylor v Kentucky (436 U.S. 478) are distinguishable and therefore do not compel a different result. Lastly, defendant's additional reliance on People v Newman (46 NY2d 126) is misplaced. There, this Court concluded that the trial court's refusal to inform the jury in its charge that the prosecution had the burden of proving every element of the crimes charged beyond a reasonable doubt as specifically mandated by CPL 300.10 (2) was reversible error.
We have considered defendant's other claim and conclude that it is without merit.
Order affirmed in a memorandum.