Opinion
March 30, 1995
Appeal from the Supreme Court, New York County (Franklin Weissberg, J.).
Since defendant did not object to the trial court's use of an example or hypothetical in its supplemental charge for the purpose of clarifying the display element of the first degree robbery count, that issue has not been preserved for review as a matter of law (CPL 470.05), and we decline to review it in the interest of justice. If we were to review, we would find that the hypothetical was not unfair, and that the supplemental charge, viewed as a whole, conveyed the appropriate legal principles (see, People v. Wise, 204 A.D.2d 133, 134-135, lv denied 83 N.Y.2d 973). Also unpreserved and in any event without merit are defendant's arguments that the court improperly marshaled the evidence in the prosecution's favor (see, People v Right, 180 A.D.2d 430, 431, lv denied 79 N.Y.2d 952), and that its "two-inference" charge suggested a burden of proof less than that of reasonable doubt (see, People v. Nunez, 203 A.D.2d 190, 191, lv denied 83 N.Y.2d 970).
Concur — Rosenberger, J.P., Ellerin, Wallach, Kupferman and Mazzarelli, JJ.