Opinion
March 6, 1990
Appeal from the Supreme Court, New York County (Edward McLaughlin, J.).
This conviction arises out of six sales of cocaine, in increasing quantities, by defendant to an undercover officer. Each quantity purchased was determined by chemical tests to contain cocaine, was vouchered for trial, and was presented as a separate People's exhibit. We are persuaded that defendant's guilt was proved by overwhelming evidence, and that, notwithstanding a transcription error resulting in a misidentification of three exhibits, the jury was able to properly consider each exhibit in determining whether the defendant was guilty of each separate sale. This conclusion is supported by the link between voucher numbers, lab numbers, and each sale.
Defendant has failed to preserve, as a matter of law, his challenge to the court's instruction on the presumption of innocence (CPL 470.05; People v Creech, 60 N.Y.2d 895), and we decline to reach this claim in the interest of justice. While we do disapprove of the trial court's introductory phrasing that "each defendant is presumed to be innocent in a sense" (emphasis added), the remainder of the instruction properly set forth the principles intended to be conveyed and reinforced, rather than weakened, the vitality of the presumption continuing until such time as the jury is convinced beyond a reasonable doubt of defendant's guilt.
Finally, we note that defendant received concurrent terms for several separate and discrete crimes, and reject his contention that the sentence was excessive.
Concur — Kupferman, J.P., Asch, Kassal, Wallach and Rubin, JJ. [ See, ___ A.D.2d ___ (May 10, 1990).]