Opinion
December 14, 1998
Appeal from the a judgment of the Supreme Court, Queens County (Cooperman, J.).
Ordered that the judgment is modified, on the law, by vacating the conviction of the second count of kidnapping in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant contends that the evidence was legally insufficient to prove his guilt of the second count of kidnapping in the first degree based upon an abduction lasting over 12 hours with the intent to inflict physical injury ( see, Penal Law § 135.25 [a]). In light of our decision in the codefendant's case ( People v. Fei Lin, 243 A.D.2d 724), the People have correctly conceded that this count should be dismissed, since the defendant's conviction was based on the same evidence we found insufficient therein.
The defendant has not preserved for appellate review his further contention that the court's jury charge as to the affirmative defense of duress impermissibly shifted to the defendant the People's burden of proving intent ( see, CPL 470.05; People v. Robinson, 88 N.Y.2d 1001). In any event, as the affirmative defense of duress "does not serve to [negate] any facts of the crime which the State is to prove in order to convict" ( Patterson v. New York, 432 U.S. 197, 207, affg People v. Patterson, 39 N.Y.2d 288), the burden of proof was not shifted to the defendant by the court's charge, nor did the court's charge allow the jury to convict on less than a unanimous verdict ( see, People v. Bastidas, 67 N.Y.2d 1006, 1007).
Finally, there is no merit to the defendant's contentions that certain of the prosecutor's remarks during summation require reversal.
Pizzuto, J. P., Joy, Goldstein and Luciano, JJ., concur.