Opinion
January 26, 1987
Appeal from the Supreme Court, Queens County (Glass, J.).
Ordered that the judgment is affirmed.
There was sufficient evidence presented at the trial from which the jury could infer that the defendant intended to commit a crime inside the premises, particularly in view of the circumstances surrounding the break in (see, People v. Barnes, 50 N.Y.2d 375, 381; People v. Mackey, 49 N.Y.2d 274, 280; People v Gilligan, 42 N.Y.2d 969).
We have frequently condemned the language which the court used in its instruction on reasonable doubt (see, e.g., People v Smith, 121 A.D.2d 411; People v. Fisher, 112 A.D.2d 378; People v Harvey, 111 A.D.2d 185). However in the case at bar a new trial is not warranted since the error of law has not been preserved for our review (see, CPL 470.05; People v. Martinez, 118 A.D.2d 661), and, moreover, the charge as a whole adequately conveyed to the jury the appropriate burden of proof (see, People v Samuels, 121 A.D.2d 751; People v. Valdivia, 108 A.D.2d 885). Mollen, P.J., Thompson, Weinstein and Rubin, JJ., concur.