Opinion
November 21, 1988
Appeal from the Supreme Court, Queens County (Browne, J.).
Ordered that the judgments under indictments Nos. 4012/84, 4055/84, 4314/84 and 4315/84 are modified, on the law, by reducing the number of mandatory surcharges of $75 to one with respect to the judgment rendered on each indictment; as so modified these judgments are affirmed; and it is further,
Ordered that the judgments under indictments Nos. 4056/84, 4057/84 and 4058/84 are affirmed.
The defendant contends that errors in the trial court's charge denied him a fair trial. While the court improperly used the terms "moral certainty" and "reasonable degree of certainty" in defining the reasonable doubt standard and instructed the jury that it must have a "substantial, articulable reason" for its doubt (see, People v. La Rosa, 112 A.D.2d 954; People v. Harvey, 111 A.D.2d 185), having failed to raise an objection to this portion of the charge, the defendant has failed to preserve the issue for appellate review (CPL 470.05). Moreover, an examination of the entire charge reveals that the concept of reasonable doubt was properly explained to the jury. Accordingly, the error does not warrant reversal in the interest of justice (see, e.g., People v. Fisher, 112 A.D.2d 378; People v. Ortiz, 92 A.D.2d 595).
The defendant also challenged the trial court's charge regarding his failure to testify. While we agree that the charge unnecessarily exceeded the language of CPL 300.10 (2) (see, People v. Gonzalez, 72 A.D.2d 508, supra), it was consistent in substance with the intent of the statute and did not change its meaning (People v. Gonzalez, 72 A.D.2d 508). Moreover, the error was harmless in view of the overwhelming proof of the defendant's guilt (People v. Crimmins, 36 N.Y.2d 230).
Finally, the defendant pleaded guilty on six indictments and each of his sentences on those indictments was the result of the plea bargain agreement. He cannot now claim his sentences were excessive (see, People v. Inch, 127 A.D.2d 851, lv denied 69 N.Y.2d 1005; People v. Kazepis, 101 A.D.2d 816). Moreover, the defendant's application for vacatur of the mandatory surcharges imposed pursuant to Penal Law § 60.35 is premature (see, People v. West, 124 Misc.2d 622; CPL 420.35, 420.10 Crim. Proc.; People v. Brown, 133 A.D.2d 463). However, as conceded by the People, the Supreme Court erred in imposing 13 surcharges as the 13 offenses represented only seven separate "act[s]" (see, Penal Law § 60.35). Mangano, J.P., Brown, Lawrence and Spatt, JJ., concur.