Opinion
December 8, 1994
Appeal from the Supreme Court, New York County (Felice Shea, J.).
Although the defendant was not present when the sale was negotiated, he supplied the baking powder with which the cocaine was converted to crack, and supplied the colored bags into which the seller placed the finished product which then was given to the undercover officer. The evidence established beyond a reasonable doubt that the defendant knew that the commodity sold was cocaine, and that he intentionally aided (Penal Law § 20.00) in the preparation of the crack for sale (People v Kaplan, 76 N.Y.2d 140). The evidence of his accomplice liability was legally sufficient and not against the weight of the evidence. Viewing the instructions in this regard as a whole (People v Goodfriend, 64 N.Y.2d 695, 697), the court properly distinguished the different elements essential to the substantive criminal sale charge as well as the theory of acting in concert (People v Kaplan, supra). The court's reasonable doubt charge was not erroneous. The "may honestly say" phrasing did not direct the jury that they must articulate their doubt (People v Antommarchi, 80 N.Y.2d 247, 251-253), and the "reflect the truth" phrasing did not diminish the People's burden of proof (People v Rawls, 187 A.D.2d 353, lv denied 81 N.Y.2d 845). The court's refusal to instruct the jury, in the context of a supplemental instruction, that reasonable doubt can arise from the lack of evidence, is not reversible error (People v Medina, 171 A.D.2d 559, 560, lv denied 78 N.Y.2d 924).
We have considered defendant's remaining claims and find they do not warrant reversal.
Concur — Ellerin, J.P., Kupferman, Williams and Tom, JJ.