Opinion
December 10, 1992
Appeal from the Supreme Court, Bronx County (Lawrence H. Bernstein, J.).
The defendant was indicted under, inter alia, Penal Law § 160.15 (2). The first count of the indictment read in pertinent part "[d]efendant acting in concert with another * * * did forcibly steal * * * and in the course of the commission of the crime or in immediate flight therefrom, the defendant was armed with a deadly weapon." During the jury charge, the trial court instructed the jury that it could find the defendant guilty of the first count if he or another participant was armed with a deadly weapon.
Although the jury charge was improper, reversal is not warranted. The issue is unpreserved since the defendant never objected at trial (CPL 470.05). Similarly, no claim of constitutional error was raised at trial (People v Iannelli, 69 N.Y.2d 684, cert denied 482 U.S. 914). Were we to review the claim in the interest of justice, we would find the error harmless since the proof presented at trial did not vary from the allegations embodied in the indictment (see, People v Grega, 72 N.Y.2d 489), the defendant having stated to police that another had held the gun to the victim.
Concur — Murphy, P.J., Carro, Rosenberger and Ellerin, JJ.