Opinion
May 16, 1996
Appeal from the Supreme Court, New York County (James Leff, J.).
Defendant's claim that the court instructed the jury that the burden of proof shifted to the defendant where he offers evidence in his own behalf is unpreserved as a matter of law, since he raised no objection to the charge ( see, People v. Brown, 220 A.D.2d 250, lv denied 87 N.Y.2d 898; see also, People v. Thomas, 50 N.Y.2d 467), and we decline to review it in the interest of justice. Moreover, the omission of the word "never" appears to be a stenographic or typographical error ( see, People v Encarnacion, 190 A.D.2d 607, 608, lv denied 81 N.Y.2d 1072), since the court had just advised the jury, moments before, that "the burden never shifts to the defendant".
The prosecution's rebuttal testimony was improper only in form, and, in any event, defendant failed to preserve his appellate claims that the testimony constituted bolstering and inappropriately injected the credibility of the prosecutor into the case ( see, People v. Paperno, 54 N.Y.2d 294), by failing to specifically object on those grounds ( see, People v. Tevaha, 84 N.Y.2d 879). Similarly, no objection was raised as to the prosecutor's comments on summation, rendering such claim unpreserved ( see, People v. Balls, 69 N.Y.2d 641). We also note the overwhelming evidence of defendant's guilt.
We perceive no abuse of discretion in sentencing.
Concur — Rosenberger, J.P., Rubin, Kupferman, Nardelli and Tom, JJ.