Judgment of the Supreme Court, Bronx County (Bernard H. Jackson, J.), rendered January 12, 1989, which convicted defendant of kidnapping in the first degree and assault in the second degree and sentenced him, as a second felony offender, to concurrent terms of imprisonment of from 15 years to life on the kidnapping conviction and 2 to 4 years on the assault conviction, is modified, on the law, the facts and as a matter of discretion in the interest of justice, to reverse the conviction of kidnapping in the first degree and to remand for a new trial on that count, and otherwise affirmed.
Defendant herein contends that Criminal Term’s failure to charge the jury in its final instructions pursuant to CPL 300.10 (2) that defendant was presumed innocent denied him of his due process right to a fair trial. CPL 300.10 (2) provides in pertinent part: "In its charge, the court must state the fundamental legal principles applicable to criminal cases in general. Such principles include, but are not limited to, the presumption of the defendant’s innocence” (emphasis added). The failure to give a charge with respect to the presumption of innocence, even where inadvertent, and where the omission was not called to the court’s attention, has been , held by us previously to mandate reversal (see, People v Gayle, 76 AD2d 587; People v Creech, 90 AD2d 701; People v Johnson, 95 AD2d 713, revd 61 NY2d 656). However, the Court of Appeals subsequently held that where there has been no objection at trial to the failure to charge on the presumption of innocence, our holding that the omission, nevertheless, mandated a reversal as a matter of law was erroneous (see, People v Creech, 60 NY2d 895, revg 90 AD2d 701, supra). The Court of Appeals remitted to us, however, to exercise our discretionary power to review this alleged error, if deemed appropriate by us (supra, at 896). Upon remand, since we found the evidence of guilt to be overwhelming, we declined to exercise our discretion to review the error (see, People v Creech, 101 AD2d 753).
In the instant case, defendant concedes he neglected to bring the omission of the presumption charge to the attention of the trial court. Since defendant admitted to committing the assault upon the complainant, we decline to review the alleged error of the omission of the presumption of innocence charge with respect to the conviction of assault in the second degree. However, our examination of the record demonstrates that the evidence of defendant’s guilt of kidnapping was not overwhelming. The issue was one of credibility as between defendant and complainant and her sister. An indication of *829how close the jury viewed this issue is demonstrated by defendant’s acquittal of sodomy and rape charges in the indictment. Under these circumstances, the inadvertent failure of the court to charge the presumption of innocence in its final instructions to the jury cannot be considered harmless error (cf., People v Creech, 101 AD2d 753, supra) with respect to the conviction for kidnapping in the first degree. We therefore reverse this conviction in the exercise of discretion and remand for a new trial.
We have examined defendant’s remaining contention with respect to the prosecutor’s alleged violation of the pretrial Sandoval ruling and find it to be without merit. Concur— Carro, Rosenberger and Asch, JJ.