Summary
referring to two-inference language as “disfavored”
Summary of this case from Miller v. PhillipOpinion
January 26, 1995
Appeal from the Supreme Court, New York County (Budd Goodman, J.).
Defendant raises claims of error on appeal that were not preserved by appropriate and timely objection at trial (CPL 470.05). Defendant's guilt of the crime charged was proven beyond a reasonable doubt and we decline interest of justice review of defendant's current claims of error. Were we to review in the interest of justice, we would find no basis for modification of the judgment. We note that the prosecutor properly cross-examined defendant regarding his failure to report to the authorities his alleged role as a hero in the incidents leading to his arrest, as it was most unusual for defendant to omit such details from the statements he gave freely to the police and to the prosecutor (see, People v. Savage, 50 N.Y.2d 673, 679, cert denied 449 U.S. 1016). As this evidence was properly before the jury, the prosecutor was entitled to comment thereon in summation (supra, at 677). Further, the prosecutor was entitled to comment in summation on defendant's failure to call witnesses who, according to defendant's testimony, were friends of his who could corroborate his claim of innocent presence at the scene (see, People v. Smith, 166 A.D.2d 385, 386, affd 79 N.Y.2d 779).
Finally, we note that despite the trial court's unobjected-to disfavored "two inferences" charge language, there was no diminution of the People's burden of proof, as the charge viewed as a whole conveyed the appropriate burden of proof (see, People v. Nunez, 203 A.D.2d 190, lv denied 83 N.Y.2d 970).
Concur — Murphy, P.J., Rosenberger, Ross, Asch and Nardelli, JJ.