Opinion
December 23, 1988
Appeal from the Onondaga County Court, Cunningham, J.
Present — Dillon, P.J., Callahan, Green, Pine and Balio, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a conviction of second degree robbery, defendant claims that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence, that the court's charge on intent and reasonable doubt impermissibly shifted the burden of proof and that the verdict was repugnant. Viewing the evidence in the light most favorable to the People (People v Contes, 60 N.Y.2d 620), we find that the People established that defendant and the codefendant forcibly deprived the complainant of the use of his truck, caused substantial damage to it and caused the complainant to suffer physical injury. This was sufficient to sustain defendant's guilt under count 4 of the indictment (see, People v Greene, 70 N.Y.2d 860; People v Dekle, 83 A.D.2d 522, affd 56 N.Y.2d 835). The court's charge on intent neither created a conclusive presumption nor impermissibly shifted the burden of proof (see, People v Getch, 50 N.Y.2d 456, 465; People v Barr, 75 A.D.2d 14, 16-17; People v Gray, 71 A.D.2d 295, 299; cf., Sandstrom v Montana, 442 U.S. 510). Defendant's claim that the verdict was repugnant was not raised before the jury was discharged and thus has been waived (see, People v Alfaro, 66 N.Y.2d 985; People v La Pella, 135 A.D.2d 735, lv denied 71 N.Y.2d 898). Although the court's instructions on reasonable doubt contained some inappropriate phrases, since defense counsel failed to object, the error has not been preserved for our review (see, People v Price, 144 A.D.2d 1013). In any event, when viewed as a whole, the court's charge properly conveyed to the jury the concept of reasonable doubt.