Opinion
February 3, 1989
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Doerr, J.P., Boomer, Pine, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's claim that the People impermissibly changed the theory of prosecution is without merit. The indictment charged defendant with attempted murder, assault and reckless endangerment by dropping Debra Pope from the windowsill of a second-story apartment. The People presented proof in support of that theory at trial, and the trial court instructed the jury only on that theory. Under these circumstances, the People did not impermissibly stray from the factual theory of the indictment (see, People v Grega, 72 N.Y.2d 489).
The claim that the court erred by admitting evidence of burn marks in the genital area and other places on the victim's body as proof of uncharged crimes was not preserved for appellate review (CPL 470.05). Although defendant objected on two occasions to receipt of such evidence, neither objection specifically questioned admissibility upon the ground now raised (see, People v Osuna, 65 N.Y.2d 822). We conclude that defendant was not deprived of a fair trial and that discretionary review in the interest of justice is not warranted (CPL 470.15 [a]).
The court erred by instructing the jury that if it found the evidence "equally susceptible" of innocence or guilt, it should acquit the defendant. That instruction, like the "balancing of scales" charge, suggests that the People may satisfy their burden of proof by less than the reasonable doubt standard (see, People v Jackson, 124 A.D.2d 975, 976, lv denied 69 N.Y.2d 746; People v Smith, 121 A.D.2d 411, 412). This error was not preserved for our review and in any event, the court's charge, when viewed as a whole, conveyed the proper standard to the jury, and reversal is not warranted (People v Mitchell, 124 A.D.2d 977).
We have reviewed the remaining claims advanced by defendant and find them to be without merit.