Sullivan, J. P., dissents in a memorandum as follows: Since I am of the opinion that there "is just no chance that the verdict would have been any different” if the court had included a charge on the presumption of innocence (People v Creech, 101 AD2d 753, 754), I would affirm the judgment in all respects. In its final charge, the court clearly instructed the jury, as it had done in its preliminary instructions, that defendant "was under no obligation to prove anything” and that the People have "the burden of proving the defendant’s guilt beyond a reasonable doubt with respect to each and every element of the crimes charged.” In addition, the testimony of the complainant and her sister provided overwhelming proof of defendant’s guilt of kidnapping; the People’s case established that defendant, pulling the complainant’s hair and twisting her arm, "dragged” her from her sister’s apartment to his mother’s apartment several blocks away and then forced her to accompany him to an abandoned apartment where he kept her against her will for more than 24 hours. That defendant testified as to a contrary version of the incident and that credibility was the main issue for the jury to resolve does not weaken the probative force of the People’s case.
The majority relies on defendant’s acquittal of the sodomy and rape charges as an indication of how close the jury viewed the issue of credibility; however, given the relationship that existed between defendant and the complainant, i.e., "common-law” husband and wife for 10 years and the parents of three children, albeit separated for the four months immediately preceding the crime, it cannot be inferred from the acquittal that the question of defendant’s guilt of kidnapping was a close one. This is especially so since the court, in charging on the sex offenses, defined a victim as "any female *830who is not married to the actor.” In that regard, the court also defined the relationship of husband and wife as one "which may be recognized by law.” Thus, the jury might well have excluded the complainant from the protected class for whom the rape and sodomy statutes were intended.