The trial court appropriately exercised its discretion in denying defendant's motion for a mistrial, after conducting a full investigation of alleged juror misconduct and determining that, after dismissal of two jurors (concurred in by counsel), the remaining 12 jurors were qualified in all respects to deliberate on the case and to render a fair and impartial verdict (see, Hall v Potoker, 49 N.Y.2d 501, 505-506).
Defendant failed to preserve for appellate review as a matter of law his claim that the trial court's charge to the jury diminished the People's burden of proof when it stated that defendant is entitled to an inference of innocence where evidence at trial presents inferences of both guilt and innocence (CPL 470.05). In any event, the charge, when viewed as a whole, adequately conveyed the appropriate standard of proof, as the jurors were repeatedly instructed that the People were required to prove defendant's guilt beyond a reasonable doubt (People v Molina, 171 A.D.2d 578, lv denied 78 N.Y.2d 970).
Concur — Murphy, P.J., Milonas, Rosenberger and Wallach, JJ.