— Judgment affirmed. Memorandum: Defendant contends that the court committed reversible error in precluding defense witness Roe from testifying about defendant’s statements during one of the drug transactions for which he was convicted. According to defendant, such statements were admissible under the state of mind exception to the hearsay rule and would have shown that defendant took no part in the transaction or that he was at most an agent for the buyer. There is nothing in the record to suggest that defense counsel was attempting to elicit defendant’s statements under the state of mind exception. Indeed, defense counsel implied that he was not attempting to elicit defendant’s statements. In the absence of proof about the contents of the statements sought to be admitted, it is impossible to determine whether they came within any exception to the hearsay rule.
In explaining to the jury why testimony was precluded by the hearsay rule, the Judge informed the jury that he would not permit the witness to testify to defendant’s out-of-court statements because defendant was not subject to cross-examination. Defendant claims, and the dissent concludes, that such instruction impermissibly referred to defendant’s failure to testify. Defendant did not object to the court’s statement and has thus failed to preserve that claim for review. If we were to review it in the interest of justice, we would conclude that defendant was not deprived of a fair trial. Although the court’s instruction indirectly alluded to defendant’s failure to take the stand, and to that extent was improper, the court was merely attempting to explain the rationale behind its hearsay ruling. The court’s remark did not constitute an unfavorable comment upon defendant’s decision not to take the stand. Therefore, any error was harmless (see, People v Koberstein, 66 NY2d 989, 990-991). Additionally, in its final charge, the court instructed the jury, pursuant to defendant’s request, that defendant’s failure to testify must not give rise to any unfavorable inference. These factors distinguish this case from People v McLucas (15 NY2d 167), cited in the dissent. In McLucas, the court in its final charge to the jury *884made repeated unfavorable comment upon defendant’s failure to testify, in violation of the Fifth Amendment and section 393 of the former Code of Criminal Procedure.
We have reviewed the additional claim asserted by defendant and find that it does not require reversal.
All concur, except Callahan, J. P., who dissents and votes to reverse, in the following memorandum.