Opinion
Submitted February 18, 2000.
April 3, 2000.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered March 10, 1998, convicting him of criminal sale of controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Stephen Dixon-Gordon of counsel), for respondent.
GABRIEL M. KRAUSMAN, J.P., HOWARD MILLER, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the court shifted the burden of proof by instructing the jury, during preliminary instructions, to consider opening statements "as a preview of what each side intends to prove by way of evidence in the case" is unpreserved for appellate review (see, CPL 470.05[2]; People v. Gray, 86 N.Y.2d 10 ; People v. Bynum, 70 N.Y.2d 858 ; People v. Pena, 242 A.D.2d 546 ). In any event, the court's instructions were substantively correct and did not shift the burden of proof to the defendant (see, People v. Pena, supra; People v. Dukes, 236 A.D.2d 484 ; People v. Burks, 221 A.D.2d 201 ; cf., People v. Rodriguez, 211 A.D.2d 443 ; People v. Robinson, 202 A.D.2d 225 ).