People v. Matos

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.

*225Defendant’s contentions concerning evidence of uncharged crimes are unpreserved (People v Buckley, 75 NY2d 843 [1990]), 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 NY2d 95, 107 [1990], cert denied 499 US 967 [1991]; People v Garcia, 276 AD2d 270 [2000], lv denied 95 NY2d 963 [2000]). The uncharged sales were clearly more probative than prejudicial (see People v Pressley, 216 AD2d 202 [1995], lv denied 86 NY2d 800 [1995]).

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 NY2d 985 [1986]; People v Cruz, 172 AD2d 383 [1991], lv denied 78 NY2d 964 [1991]). We, however, would also express our disappointment that our attention once again must be directed to trial court’s deviation without explanation or, as we see it, justification from the standard and approved Criminal Jury Instructions on reasonable doubt (see CJI[NY]2d Presumption of Innocence; Burden of Proof; Reasonable Doubt). Concur — Buckley, P.J., Tom, Rosenberger, Lerner and Marlow, JJ.