Opinion
September 21, 1993
Appeal from the Supreme Court, New York County (Richard Andrias, J.).
Defendant raises numerous issues which were previously rejected by this Court in deciding the appeal of codefendant Robert Devon (People v Devon, 184 A.D.2d 322, lv denied 80 N.Y.2d 928). In addition thereto, defendant claims reversible error in connection with the trial court's jury charge on identification and the lack of a constructive possession charge during presentation of this case to the Grand Jury. We note that defendant's additional claims are unpreserved by appropriate and timely exception or objection (CPL 470.05). In any event, the trial court's detailed charge on identification conveyed to the jury the appropriate rules to be applied in arriving at its decision (People v Hurk, 165 A.D.2d 687, 688, lv denied 76 N.Y.2d 1021), and as the evidence before the Grand Jury supported defendant's actual, not constructive, possession of the gun in question, a constructive possession charge was uncalled for. Additionally, in view of the overwhelming evidence against defendant presented before the Grand Jury, it is unlikely that the grand jurors seized upon the testifying police officer's single reference to the recovered gun as "stolen" as a basis for voting an indictment herein.
Concur — Sullivan, J.P., Carro, Ellerin, Kassal and Nardelli, JJ.