People v. Knight

174 A.D.2d 1008, 572 N.Y.S.2d 168, 1991 N.Y. App. Div. LEXIS 8934

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant failed to preserve for review his contention that the court’s instruction on intoxication was improper. We decline to reach the issue in the interest of justice because the charge as given, contrary to defendant’s argument, was a correct statement of the law and did not impermissibly shift the burden of proof to the defendant.

Defendant also failed to object to the court’s charge on flight. Although the charge did not specifically mention that evidence of flight is of limited value (see, People v Yazum, 13 NY2d 302, 304, rearg denied 15 NY2d 679), the court did charge that flight may have an innocent explanation (see, People v Atson, 139 AD2d 520, 521, lv denied 72 NY2d 856). The language of the charge was permissive and did not imply that the jury had to find defendant guilty by virtue of his flight (see, People v Buggs, 109 AD2d 1052). Consequently, reversal in the interest of justice is not warranted.

We have examined the remaining issues raised by counsel and by defendant and find them to be without merit. Finally, in our view, the sentence is not harsh and excessive and we decline to modify it. (Appeal from Judgment of Supreme Court, Monroe County, Bergin, J.—Murder, 2nd Degree.) Present—Doerr, J. P., Boomer, Green, Pine and Davis, JJ.