While the court's charge with respect to defendant's failure to testify may have been lengthier than it should have been, it was not facially incorrect and did not imply to the jury that defendant should have testified. Moreover, defendant's claim that the charge implied that his decision not to testify was a tactical maneuver is unpreserved for review as a matter of law, defendant having failed to object to the charge at the time it was delivered (People v. Autry, 75 N.Y.2d 836).
The prosecutor's summation did not shift the People's burden of proving guilt beyond a reasonable doubt. Moreover, the court advised the jury that the indictment is not proof and otherwise gave clear and correct instructions on the People's burden of proof, which instructions the jury is presumed to have followed (People v. Davis, 58 N.Y.2d 1102, 1104).
Defendant's claim that ineffective assistance of counsel resulted in the denial of his right to testify before the Grand Jury should be raised in the context of a CPL 440.10 motion, an option that defendant may still invoke. The record as presently constituted, does not permit review of this claim (see, People v Brown, 45 N.Y.2d 852, 853-854).
We find the sentence excessive to the extent indicated.
We have considered defendant's other contentions and find them to be without merit.
Concur — Murphy, P.J., Sullivan, Rosenberger and Wallach, JJ.