(dissenting). We would affirm the judgment appealed from.
On the day before the verdict the court clearly instructed the jury in response to the jury’s question that, if the jury concluded that the crime was performed by one of two persons, one of whom could be the defendant, that was not sufficient to convict the defendant; that the guilt of this defendant (later referred to as "the only person on trial before you”) must be proved beyond a reasonable doubt. This charge was explicitly stated to be acceptable to defendant’s attorney. In the circumstances, we think the majority is giving a tortured and unnatural interpretation to what is at worst a slightly ambiguous phrase or two in the court’s later instruction. "A charge may be a sufficient and even a substantially correct instruction even though it contains phrases which, isolated from their context, seem erroneous. The test is always whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at decision.” (People v Russell, 266 NY 147, 153.) The question of the effect of the appearance of possibly another "Na” in the address book had previously arisen and been dealt with by the court’s instruction satisfactorily to the defendant’s attorney. Thus defendant’s attorney was alerted to this issue. The failure of the defendant’s attorney to object to the later instruction, now found erroneous by the majority, is extremely persuasive that nobody who heard the later slightly ambiguous instruction thought that it in any way contradicted or vitiated the earlier clear and correct instruction. "[CJonvictions are not to be set aside because, on reflection in tranquility, better charges could have been composed.” (People v Yanik, 43 NY2d 97, 100.)
Lupiano and Bloom, JJ., concur with Sullivan, J.; Kupferman, J. P., and Silverman, J., dissent in an opinion by Silverman, J.
Judgment, Supreme Court, New York County, rendered on *321December 15, 1977, reversed, on the law, and the matter remanded for a new trial.