Opinion
October 30, 1989
Appeal from the Supreme Court, Queens County (Berkowitz, J.).
Ordered that the judgment and the amended judgments are affirmed.
The defendant, who at trial made no requests and took no exceptions to any portion of the court's instructions to the jury, has failed to preserve for appellate review his contention that the court's charge on reasonable doubt constituted reversible error (see, e.g., People v Hammond, 143 A.D.2d 1043; People v Brown, 133 A.D.2d 773; People v Fisher, 112 A.D.2d 378). In any event, we note that it was not error to instruct the jurors that reasonable doubt existed if they had a doubt upon which they believed "a reasonable person would hesitate to act" (see, People v Quinones, 123 A.D.2d 792, 793; see also, 1 CJI[NY] 6.20, at 248). Moreover, while it was error to make use of the phrase "reasonable certainty" (see, People v Smith, 113 A.D.2d 905, 908; cf., People v La Rosa, 112 A.D.2d 954; People v Morris, 100 A.D.2d 600), neither the single instance where the trial court did so here nor the other claimed imperfections diluted the effect of the charge, which repeatedly and accurately conveyed to the jury the concept of reasonable doubt (see, People v Canty, 60 N.Y.2d 830; People v Malloy, 55 N.Y.2d 296; see also, People v Hammond, 143 A.D.2d 1043, supra, People v Brown, 133 A.D.2d 773, supra; People v Smith, supra).
The defendant's contention that, because of a claimed failure to observe the procedures set forth in CPL 410.70, the sentencing court was without authority to impose terms of imprisonment on two previous convictions for which he was originally sentenced to probation is without merit. The record reflects that in accordance with the statute and due process the defendant was arraigned on the violation of probation statements (see, CPL 410.70) and that he was afforded an opportunity to be heard (see, CPL 410.70; see also, People v Oskroba, 305 N.Y. 113; People v Compton, 42 A.D.2d 201). We note, moreover, that the defendant's arrest while on probation and his subsequent conviction for criminal sale of a controlled substance in the fifth degree, which we hereby affirm, constitute a sufficient basis for revocation of his prior sentences of probation (see, CPL 410.10). Finally, we discern no basis to disturb the sentencing court's direction that the sentence imposed on the latter conviction run consecutively to the two concurrent terms of imprisonment on his previous convictions for criminal possession of stolen property in the fourth degree and attempted robbery in the third degree (People v Suitte, 90 A.D.2d 80). Bracken, J.P., Sullivan, Harwood and Rosenblatt, JJ., concur.