Opinion
June 7, 1991
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Doerr, J.P., Boomer, Green, Pine and Davis, JJ.
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 N.Y.2d 302, 304, rearg denied 15 N.Y.2d 679), the court did charge that flight may have an innocent explanation (see, People v Atson, 139 A.D.2d 520, 521, lv denied 72 N.Y.2d 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 A.D.2d 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.