Opinion
February 7, 1995
Appeal from the Supreme Court, Bronx County (Joseph Cerbone, J.).
Viewing the evidence in the light most favorable to the People, and giving due deference to the jury's evaluation of credibility, defendant's guilt was proved beyond a reasonable doubt and the verdict was not against the weight of the evidence (People v Bleakley, 69 N.Y.2d 490, 494-495; Matter of Anthony M., 63 N.Y.2d 270, 280).
Defendant's challenge to introduction of evidence concerning the overheard telephone conversation on the basis of hearsay is unpreserved for appellate review as a matter of law (People v Mosely, 200 A.D.2d 430, 431, lv denied 83 N.Y.2d 856), and we decline to review in the interest of justice. Nor has defendant preserved most of his challenges to the prosecutor's opening and summation, most of which are meritless, and none of which would warrant reversal. Defendant's present contention that the court sua sponte submitted a non-adverse inference instruction, in connection with defendant's failure to testify, without request by defendant, also is unpreserved for review (People v. Temple, 165 A.D.2d 748, 750, lv denied 76 N.Y.2d 944). Although it would have been error for the court to have done so (CPL 300.10), the present state of the record is inadequate to determine, if, in fact, the instruction was submitted sua sponte. Nor would the instruction, as given, warrant reversal. Even though it departed from the statutory language, it was facially accurate and did not imply that the failure to testify was only a tactical decision (compare, People v. Jones, 200 A.D.2d 441, lv denied 83 N.Y.2d 854, with People v Celestino, 201 A.D.2d 91, 98-99). Defendant also failed to preserve his challenge to the reasonable doubt instruction (People v. Uraca, 195 A.D.2d 377, lv denied 82 N.Y.2d 728). In any event, this Court has concluded that this phrasing does not improperly impose upon the jurors an affirmative duty to articulate their doubt (People v. Jones, 208 A.D.2d 415). We have considered defendant's remaining contentions and find them to be meritless.
Concur — Ellerin, J.P., Kupferman, Asch, Nardelli and Williams, JJ.