People v. Wilson , 548 N.Y.S.2d 886 ( 1989 )

Judgment of the Supreme Court, Bronx County (Lawrence J. Tonetti, J.), rendered March 8, 1988, which convicted defendant, after a jury trial, of second degree sodomy and sentenced him to a prison term of 3 Vi to 7 years, unanimously affirmed.

Upon viewing the evidence in the light most favorable to the People, we find no rational basis to disturb the jury’s finding that defendant sodomized the 11-year-old daughter of his previously deceased girlfriend. The trier of fact is in the best position to observe the demeanor of the witnesses and assess their ability for accuracy and veracity (People v Siu Wah Tse, 91 AD2d 350, lv denied 59 NY2d 679).

Defendant’s contention that the court’s jury instructions conveyed the impression that defendant’s failure to testify was a tactical decision rather than the exercise of a constitutional right has not been preserved for appellate review. (People v Lara, 148 AD2d 340, lv granted 73 NY2d 1017.) Were we to consider this claim, we would, nonetheless, affirm, finding that the charge was not objectionable. Concur—Murphy, P. J., Kupferman, Sullivan, Carro and Rosenberger, JJ.