Opinion
November 15, 1989
Appeal from the Supreme Court, Erie County, Marshall, J., Doyle, J.
Present — Denman, J.P., Green, Pine, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's claim that the testimony of Officer Adams was incredible as a matter of law. Testimony will be rejected as incredible as a matter of law only when it is "`"impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory"'" (People v Stroman, 83 A.D.2d 370, 373; see also, People v Christian, 139 A.D.2d 896, lv denied 71 N.Y.2d 1024; People v Shedrick, 104 A.D.2d 263, affd 66 N.Y.2d 1015, rearg denied 67 N.Y.2d 758). Adams' testimony was substantially corroborated by Officer Streichler and, although Adams' testimony was inconsistent in some respects, the various testimonial discrepancies were presented to the jury, which chose to believe Adams and not the defendant. Under the circumstances, the testimony was not so inconsistent as to be incredible as a matter of law (see, People v Shedrick, 104 A.D.2d 263, 273-274, supra). The jury verdict was supported by legally sufficient evidence and, upon our independent review, was not contrary to the weight of evidence (see, People v Bleakley, 69 N.Y.2d 490).
Defendant's claim that the court erred in instructing the jury on the burden of proof was not preserved for our review (CPL 470.05; People v Thomas, 50 N.Y.2d 467). The jury charge, viewed as a whole, did not mislead the jury respecting the People's burden of proof, and we decline to exercise our discretionary powers to review this issue in the interests of justice (see, CPL 470.15 [a]). We have reviewed defendant's remaining claims and find them to be without merit.