Opinion
November 6, 1995
Appeal from the Supreme Court, Kings County (Starkey, J.).
Ordered that the judgment is affirmed.
The defendant's challenge to the trial court's refusal to charge criminally negligent homicide (see, Penal Law § 125.10) as a lesser-included offense of murder in the second degree (see, Penal Law § 125.25) is foreclosed due to the jury's verdict finding him guilty of murder in the second degree, the crime alleged in the indictment, and its implicit rejection of the charged lesser-included offenses of first and second degree manslaughter (see, People v Richette, 33 N.Y.2d 42; People v Cruz, 191 A.D.2d 507; People v Rammelkamp, 167 A.D.2d 560).
The defendant's contention that the prosecutor's summation improperly tended to shift the burden of proof to the defense is not preserved for appellate review (see, CPL 470.05; People v Balls, 69 N.Y.2d 641). In any event, the remarks did not improperly shift the burden of proof (see, People v Thomas, 186 A.D.2d 602).
Finally, the defendant's sentence was not excessive (see, People v Suitte, 90 A.D.2d 80). Balletta, J.P., Miller, O'Brien and Copertino, JJ., concur.