People v. Butt , 759 N.Y.S.2d 875 ( 2003 )

—Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered December 19, 2000, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 12 years with five years postrelease supervision, unanimously affirmed.

Since defendant failed to make his position sufficiently clear during the colloquy following the court’s charge, his claim that the charge effectively informed the jury that the element of serious physical injury had been established is unpreserved (see People v Lopez, 185 AD2d 189, 191 [1992], lv denied 80 NY2d 975 [1992]), and we decline to review it in the interest of justice.

Defendant’s challenge to the court’s instruction on excessive force is also unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the instruction conveyed the proper standards.

We perceive no basis for reducing the sentence. Concur— Rosenberger, J.P., Lerner, Friedman, Marlow and Gonzalez, JJ.