Opinion
December 6, 1994
Appeal from the Supreme Court, New York County (Jeffrey Atlas, J.).
Defendant's contentions that the court's preliminary instruction on "the job of the defense lawyer * * * to show you where the information brought to you by the district Attorney may not be complete, may not be reliable" shifted the burden of proof, and that its expansive instruction on defendant's decision not to testify denied him a fair trial by drawing excessive attention to such decision, are unpreserved for appellate review as a matter of law, and we decline to review them in the interest of justice. If we were to review them, we would find that the former is without merit in view of the court's final instructions thoroughly advising the jury with respect to the People's burden of proof (People v Pena, 196 A.D.2d 753, lv denied 82 N.Y.2d 900; People v Caldwell, 196 A.D.2d 760, lv denied 82 N.Y.2d 892), and as to the latter that any error was harmless beyond a reasonable doubt in view of the overwhelming proof of defendant's guilt (see, People v Ash, 191 A.D.2d 739, 742, lv denied 81 N.Y.2d 1069).
We have considered defendant's other arguments and find them to be without merit.
Concur — Murphy, P.J., Sullivan, Kupferman, Asch and Tom, JJ.