PEOPLE v. CUSTODIO

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence on the conviction of murder in the second degree to 15 years to life; as so modified, the judgment is affirmed.

The defendant has not preserved for appellate review his contentions regarding the court's instructions to the jury on the presumption of innocence and a defendant's right not to testify ( see, People v. Williams, 226 A.D.2d 406; People v. Cahill, 220 A.D.2d 608). In any event, when viewed as a whole, the court's charge was proper ( see, People v. Williams, supra, at 406; People v Actie, 215 A.D.2d 570).

The defendant's sentence was excessive to the extent indicated herein.

The defendant's remaining contentions are without merit.

Bracken, J.P., Pizzuto, Friedmann and McGinity, JJ., concur.