Opinion
December 1, 1992
Appeal from the Supreme Court, New York County (Budd Goodman, J.).
The claimed errors in the court's charge are unpreserved (CPL 470.05), and, in any event, without merit. The court's instruction on reasonable doubt was proper (see, People v Antommarchi, 176 A.D.2d 104, revd on other grounds 80 N.Y.2d 247), and, indeed, defense counsel used similar language in summation. The other instruction challenged on appeal neither purported to, nor had the effect of, shifting the burden of proof, but merely stated defendant's contentions.
The prosecutor's comments in summation were an appropriate response to matters stressed by the defense (see, People v Wright, 172 A.D.2d 293, 294, lv denied 77 N.Y.2d 1003). The claim that the prosecutor improperly vouched for the complainant's credibility is unpreserved, and, in any event, this isolated statement did not deprive defendant of a fair trial.
Defendant's contention that the sentence is excessive is without merit in view of his prior felony conviction and commission of this crime while still on parole.
Concur — Sullivan, J.P., Carro, Wallach, Kupferman and Kassal, JJ.