People v. Davis

250 A.D.2d 776, 671 N.Y.S.2d 1003, 1998 N.Y. App. Div. LEXIS 5752

Opinion

—Appeal by the defendant from a judgment of the County Court, Westchester County (Cirigliano, J.), rendered December 4, 1996, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the court’s use of the pattern jury instruction regarding the evaluation of declarations against penal interest (see, 1 CJI[NY] 7.40, at 322) impermissibly shifted the burden of proof to him is unpreserved for appellate review, as this argument was neither raised nor considered at the trial level (see, CPL 470.05 [2]; People v Canty, 60 NY2d 830). In any event, the defendant’s claim that the instruction was unbalanced and that the court should have added his proffered language to the charge is without merit. The instruction given was in accord with established legal principles (see, People v Settles, 46 NY2d 154; People v Jacobsen, 135 AD2d 1118), and the charge as a whole adequately apprised the jury of the correct legal principles to be applied to the case (see, People v Ladd, 89 NY2d 893; People v Fields, 87 NY2d 821). Miller, J. P., Ritter, Sullivan and Pizzuto, JJ., concur.