Opinion
477
March 13, 2003.
Judgment, Supreme Court, New York County (Budd Goodman, J.), rendered April 12, 2001, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (four counts) and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years, unanimously affirmed.
Holly Agajanian, for respondent.
Beth S. Lyons, for defendant-appellant.
Before: Buckley, P.J., Tom, Rosenberger, Lerner, Marlow, JJ.
Defendant's contentions concerning evidence of uncharged crimes are unpreserved (People v. Buckley, 75 N.Y.2d 843), and we decline to review them in the interest of justice. Were we to review these claims, we would find that the two contemporaneous uncharged sales completed the narrative of the four charged observation sales, went to the issue of acting-in-concert, and were highly relevant to the element of intent to sell under the possession charge (see People v. Carter, 77 N.Y.2d 95, 107, cert denied 499 U.S. 967; People v. Garcia, 276 A.D.2d 270, lv denied 95 N.Y.2d 963). The uncharged sales were clearly more probative than prejudicial (see People v. Pressley, 216 A.D.2d 202, lv denied 86 N.Y.2d 800).
Defendant's challenge to the court's charge is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the charge as a whole conveyed the proper standards and that nothing in the court's instruction on the subject of drawing inferences could have misled the jury as to the People's burden of proof (see People v. Mosley, 67 N.Y.2d 985; People v. Cruz, 172 A.D.2d 383, lv denied 78 N.Y.2d 964). We, however, would also express our disappointment that our attention once again must be directed to trial courts' deviation without explanation or, as we see it, justification from the standard and approved Criminal Jury Instructions on reasonable doubt (see CJI2d [NY] Presumption of Innocence; Burden of Proof; Reasonable Doubt).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.