jury regarding presumption in New York

2014Respondent’s contention this Court’s decision in Matter of Clapper ( 279 AD2d 730 [2001]) compels a contrary finding is not persuasive.

2014Respondent’s contention this Court’s decision in Matter of Clapper ( 279 AD2d 730 [2001]) compels a contrary finding is not persuasive.

1991The money alleged to have been misapplied by the bank officers must have been used "not for the benefit of the company, but for the use and benefit of other enterprises in which they are interested” (People v Marcus, 261 NY 268, 278 ).

1991However, we agree with the defendant’s claim that the trial court’s charge to the jury regarding the defense was "overly restrictive” (People v Whitehead, supra, at 896 ).

1987The court properly refused the defendant’s request to charge the jury regarding the defense of extreme emotional disturbance, as viewing the evidence in the light most favorable to the defendant, there was insufficient evidence from which a jury could find by a preponderance of the evidence that the elements of this affirmative defense were satisfied (see, People v Moye, 66 NY2d 887 ; People v Walker, 64 NY2d 741 , rearg dismissed 65 NY2d 924 ; People v Knights, 109 AD2d 910 ).

1987We further note that the court’s refusal to charge manslaughter in the second degree (reckless manslaughter) as a lesser included offense of murder in the second degree was entirely proper as no reasonable view of the evidence would support a finding that the defendant acted recklessly rather than intentionally (see, People v Green, 56 NY2d 427 , rearg denied 57 NY2d 775 ; People v Bell, 111 AD2d 926, lv denied 66 NY2d 917 ).

1987We further note that the court’s refusal to charge manslaughter in the second degree (reckless manslaughter) as a lesser included offense of murder in the second degree was entirely proper as no reasonable view of the evidence would support a finding that the defendant acted recklessly rather than intentionally (see, People v Green, 56 NY2d 427 , rearg denied 57 NY2d 775 ; People v Bell, 111 AD2d 926, lv denied 66 NY2d 917 ).

1987The court properly refused the defendant’s request to charge the jury regarding the defense of extreme emotional disturbance, as viewing the evidence in the light most favorable to the defendant, there was insufficient evidence from which a jury could find by a preponderance of the evidence that the elements of this affirmative defense were satisfied (see, People v Moye, 66 NY2d 887 ; People v Walker, 64 NY2d 741 , rearg dismissed 65 NY2d 924 ; People v Knights, 109 AD2d 910 ).

1987The court properly refused the defendant’s request to charge the jury regarding the defense of extreme emotional disturbance, as viewing the evidence in the light most favorable to the defendant, there was insufficient evidence from which a jury could find by a preponderance of the evidence that the elements of this affirmative defense were satisfied (see, People v Moye, 66 NY2d 887 ; People v Walker, 64 NY2d 741 , rearg dismissed 65 NY2d 924 ; People v Knights, 109 AD2d 910 ).

1986Consequently, we need comment only on defendant’s argument that County Court allegedly failed to instruct the jury regarding the presumption found in Penal Law § 165.55 (l) — that one "who knowingly possesses stolen property is presumed to possess it with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof’ — is rebuttable (see, People v Felcone, 43 NY2d 976 ).

1986Defendant did not object on this ground at trial and cannot now raise the issue before this court (see, People v Osuna, 65 NY2d 822 ; People v West, 56 NY2d 662 ).

1983Although encouraging trial courts “to exercise their discretion by giving a more detailed identification charge when appropriate”, the Court of Appeals has held that a charge that identification must be proved beyond a reasonable doubt is adequate (People v Whalen, supra, p 279 ).