Opinion
December 21, 1993
Appeal from the Supreme Court, New York County (Murray Mogel, J.).
Defendant's contention that the court's charge to the jury included an unbalanced marshalling of the evidence and hypothetical illustration, is unpreserved and we decline to reach it in the interest of justice (People v Soto, 167 A.D.2d 302, 303, lv denied 77 N.Y.2d 1001). Were we to reach it, we would find the contention meritless. The Trial Justice did not: (1) extensively and favorably marshall the People's case with no mention of its flaws (see, People v Hall, 155 A.D.2d 344, 346), (2) utterly fail to mention the defendant's positions (see, People v Seegars, 172 A.D.2d 183, 187, appeal dismissed 78 N.Y.2d 1069), (3) effectively coerce a guilty verdict (see, People v Taylor, 45 A.D.2d 953), or (4) commit "flagrant" errors (People v Chambers, 73 A.D.2d 976). The court neither expressed nor implied any opinion on the ultimate question of defendant's guilt or innocence (see, People v Butler, 57 A.D.2d 931, 932), and repeatedly made clear to the jurors that their own recollections controlled (see, People v Cutwright, 149 A.D.2d 608). Further, the hypothetical illustration of constructive possession and the People's factual contention were not "`strikingly similar'" (People v Johnson, 171 A.D.2d 532, 533, lv denied 77 N.Y.2d 996).
We have considered the defendant's remaining argument, and find it to be without merit.
Concur — Sullivan, J.P., Asch, Rubin and Nardelli, JJ.