Opinion
January 30, 1996
Appeal from the Supreme Court, New York County (Bonnie Wittner, J.).
Defendant failed to preserve his challenge to the court's supplemental charge on the permissive inference connected with defendant's recent and exclusive possession of stolen property ( People v Cowans, 213 A.D.2d 344, lv denied 85 N.Y.2d 971) and we decline to review the claim in the interest of justice. Were we to review it, we would find it to be without merit. The court's clarification of its charge to the jury was properly tailored to the facts of the case ( see, People v Baskerville, 60 N.Y.2d 374, 382), where defendant was found in exclusive possession of stolen property immediately after the crime and in close proximity to the scene of the crime. There was no evidence or claim that he may have received the stolen goods from someone else. Thus, the only inference of guilt that could be drawn was that the defendant was the thief and not a receiver ( supra).
Defendant's other claim that the prosecutor shifted the burden of proof during her summation is also unpreserved ( People v Sanabria, 216 A.D.2d 29, lv denied 86 N.Y.2d 846), and we decline to review it in the interest of justice. Were we to review it, we would find that the challenged portions of the summation constituted permissible rhetorical comment ( People v Galloway, 54 N.Y.2d 396), and not improper burden shifting.
Concur — Murphy, P.J., Sullivan, Ellerin, Ross and Mazzarelli, JJ.