The People of the State of New York, Respondent, v. Ricky Knight, Appellant

The People of the State of New York, Respondent, v Ricky Knight, Appellant. [620 NYS2d 942] [MAJORITY] —Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered March 12, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed. The court’s charge as a whole conveyed to the jury that the People must prove the defendant’s identity beyond a reasonable doubt (see, People v Perez, 164 AD2d 839). Defendant’s other claims concerning the charge are unpreserved for appellate review as a matter of law (CPL 470.05), and we decline to review them in the interest of justice. Were we to review them we would find that while the statement that defendant did not take the stand on the advice of counsel should not have been in the charge, it did not draw undue attention to defendant’s decision not to testify (see, People v Diggs, 151 AD2d 359, lv denied 74 NY2d 895); that the charge, viewed as a whole, conveyed the proper standard of proof (see, People v Andujas, 79 NY2d 113, 118); and that any error was rendered harmless by overwhelming evidence of defendant’s guilt. Concur—Murphy, P. J., Sullivan, Rosenberger and Asch, JJ.