Opinion
February 27, 1996
Appeal from the Supreme Court, Bronx County (Joseph Fisch, J.).
In this "buy and bust" case, there was extensive cross-examination of the police concerning their failure to use various additional investigative techniques. Accordingly, in charging the jury that they should "not consider or speculate about" what other investigative techniques might have been used, the word "consider" was inappropriate. However, this did not render the court's reasonable doubt instruction reversible error since the quoted language properly focused on the prohibition against juror speculation, and the instruction otherwise adequately conveyed the principle that a reasonable doubt can arise from a "lack of evidence" ( compare, People v. Duncan, 221 A.D.2d 254, with People v. Rodriguez, 141 A.D.2d 382). In any event, given the overwhelming evidence of guilt, any error was harmless ( People v. Roldos, 161 A.D.2d 610, lv denied 76 N.Y.2d 864).
We find the sentence excessive to the extent indicated. We have considered defendant's other contentions and find them to be without merit.
Concur — Sullivan, J.P., Ellerin, Rubin, Kupferman and Williams, JJ.