Opinion
2610
January 30, 2003.
Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered March 5, 1998, convicting defendant, after a jury trial, of robbery in the second degree and sentencing him, as a second felony offender, to a term of 13 years, unanimously affirmed.
Jonathan Zucker, for Respondent.
Rebecca A. Jacobstein, for Defendant-Appellant.
Before: Nardelli, J.P., Tom, Ellerin, Friedman, Marlow, JJ.
While the court's charge should have included, as requested by defendant, some balancing language conveying the principle that a reasonable doubt could arise from the insufficiency or lack of evidence (see People v. Corbin, 214 A.D.2d 318, lv denied 86 N.Y.2d 780; compare People v. Reinoso, 257 A.D.2d 484, lv denied 93 N.Y.2d 901), the error was harmless in light of the overwhelming proof of defendant's guilt. Moreover, defendant's claim that the charge shifted the burden of proof is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court's charge could not have been interpreted by the jury in that fashion. "We would also express our disappointment that our attention once again must be directed to the trial courts' deviation without explanation or, as we see it, justification from the standard and approved Criminal Jury Instructions (see e.g. CJI [NY] 2.51, 6.20; see also CJI2d [NY] Presumption of Innocence; Burden of Proof; Reasonable Doubt)."
With suitable limiting instructions, the court properly admitted a statement that was not offered for its truth but to complete the narrative and to explain the actions of the police (see People v. Jackson, 298 A.D.2d 144, 747 N.Y.S.2d 768). As defendant concedes, his Confrontation Clause objection is unpreserved (see People v. Maher, 89 N.Y.2d 456, 460 [n 1]), and we decline to review it in the interest of justice. Were we to review this claim, we would reject it (People v. Tosca, 287 A.D.2d 330, 330-331, affd 98 N.Y.2d 660).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.