Opinion
May 2, 1995
Appeal from the Supreme Court, New York County (Clifford Scott, J.).
Defendant's claims regarding the trial court's sua sponte no adverse inference charges which allegedly diminished the People's burden of proof, and the charge which allegedly suggested that the jury visit the crime scene are unpreserved for appellate review as a matter of law (CPL 470.05; see, People v Autry, 75 N.Y.2d 836, 839), and we decline to review them in the interest of justice. Were we to review them, we would find them to be without merit. The trial court has discretion to give a no adverse inference charge without a request from defendant (People v Vereen, 45 N.Y.2d 856, 857), and we have previously found no error in similar language (People v Jones, 200 A.D.2d 441, lv denied 83 N.Y.2d 854). Viewed as a whole, the charge conveyed the proper burden of proof, since on at least 20 occasions the court informed the jury that the People's burden of proof was to establish defendant's guilt beyond a reasonable doubt. (People v Nunex, 203 A.D.2d 190, lv denied 83 N.Y.2d 970.) We also find the latter charge is not susceptible of the implication of which defendant now complains.
Considering defendant's extensive criminal record, including two prior felony convictions for similar drug related offenses perpetrated in the same neighborhood, the sentence imposed was not excessive.
Concur — Sullivan, J.P., Wallach, Kupferman, Nardelli and Williams, JJ.