Opinion
November 7, 1994
Appeal from the Supreme Court, Kings County (Owens, J.).
Ordered that the judgment is affirmed.
The defendant contends that the jury charge failed to indicate that the indictment was not evidence in the case, and that the court shifted the burden of proof by charging "[n]ow who speaks the truth? This is the question for you to determine. To the best of your ability, I ask you to apply common sense and good judgment and to be fair in your judgment". Each of these alleged errors is unpreserved for appellate review as the defendant failed to raise any objection to the charge in the trial court (see, CPL 470.05; People v. Udzinski, 146 A.D.2d 245). In any event, while the court did not specifically instruct the jury that the indictment was not evidence, it thoroughly explained what could be considered as evidence. Further, the court specifically stated in charging each count that the burden was on the People to prove each element beyond a reasonable doubt. Thus, the charge, taken as a whole, adequately instructed the jury as to the burden of proof (see, People v. Russell, 266 N.Y. 147, 153).
This Court has also held that the isolated question "`Who speaks the truth? This is a question for you to decide'" does not alone warrant reversal where "the court's charge viewed in its entirety adequately explained the concepts of reasonable doubt and the People's burden of proof and made it clear that the defendant bore no burden of proof" (People v. Jones, 173 A.D.2d 487). Since the charge adequately informed the jury that the burden was that of the People and the People alone and that the defendant bore no burden of proof, reversal is not warranted (see, People v. Coleman, 70 N.Y.2d 817, 819; People v. Green, 154 A.D.2d 616). Thompson, J.P., Balletta, Rosenblatt and Florio, JJ., concur.