People v. Haskins

271 A.D.2d 454, 706 N.Y.S.2d 891, 2000 N.Y. App. Div. LEXIS 3727

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 2000
• Status: Published

Opinion

—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.

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 NY2d 10; People v Bynum, 70 NY2d 858; People v Pena, 242 AD2d 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 AD2d 484; People v Burks, 221 AD2d 201; cf., People v Rodriguez, 211 AD2d 443; People v Robinson, 202 AD2d 225). Krausman, J. P., H. Miller, Schmidt and Smith, JJ., concur.