People v. Mitchell , 484 N.Y.S.2d 916 ( 1985 )

Appeal by defendant from a judgment of the Supreme Court, Queens County (Calabretta, J.), rendered January 6, 1983, convicting him of robbery in the second degree (two counts), and criminal possession of stolen property in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The trial court erred in its charge on recent exclusive possession of stolen property in repeatedly referring to a “presumption” of guilt flowing therefrom. We find, however, that the charge nevertheless conveyed the proper standards to the jury. Throughout the instructions, the jury was explicitly told that the law permitted but did not require them to infer theft from possession and that they were free to conclude that defendant had obtained possession in some other way. Furthermore, the court informed the jury that the inference was rebuttable and that the People are required to prove beyond a reasonable doubt all of the elements of the crimes charged, that the defendant was presumed innocent and that the burden of proof never shifts. In these circumstances, the use of the word “presumption” cannot be deemed to have misled the jury so as to deprive defendant of a fair trial (see, Insero v Henderson, 554 F Supp 824, affd 742 F2d 1439).

We have considered defendant’s remaining contentions and find them to be either without merit or unpreserved for appellate review. We decline to exercise our interest of justice jurisdiction in view of the overwhelming proof of guilt. Mollen, P. J., Titone, Thompson and Bracken, JJ., concur.