Opinion
November 10, 1994
Appeal from the Supreme Court, Bronx County (Irene Duffy, J.).
Defendant's current claims of prosecutorial misconduct in summation are unpreserved by objection (People v. Gould, 181 A.D.2d 543, lv denied 79 N.Y.2d 1049). In light of the overwhelming evidence against defendant, we decline interest of justice review.
Defendant also did not preserve his current claim that the trial court's characterization of the People's position versus the defendant's position as a "dispute", and its references in the jury charge to determinations of "the truth" in connection with credibility and factual issues deprived him of a fair trial (see, People v. Flecha, 161 A.D.2d 116, lv denied 76 N.Y.2d 856; People v. Iannelli, 69 N.Y.2d 684, cert denied 482 U.S. 914). In any event, contrary to defendant's current argument, such references did not serve to replace the People's beyond a reasonable doubt burden of proof with "a search for the truth", or to diminish the People's burden of proof, as the court repeatedly instructed the jury regarding the People's burden of proving defendant's guilt beyond a reasonable doubt (see, People v. Rawls, 187 A.D.2d 353, lv denied 81 N.Y.2d 845). In this connection, we note that defendant specifically approved of the trial court's supplementary instruction to the jury, made at defense counsel's request, that the jury's function included a determination of "where is the truth" on the issue of whether or not defendant possessed a loaded gun at the time and place in question.
Concur — Rosenberger, J.P., Kupferman, Asch and Tom, JJ.