Opinion
June 22, 1987
Appeal from the County Court, Westchester County (Coutant, J.).
Ordered that the judgment is affirmed.
The court properly instructed the jury in the section of its charge on criminal possession of stolen property in the third degree that under the law of this State, if it found that the defendant was in exclusive and unexplained possession of recently stolen property, then they could permissibly draw an inference that such possession was guilty possession (see, People v Leotta, 104 A.D.2d 828). Although there was no evidence indicating that the defendant ever possessed the property in question to the exclusion of his accomplice, the court's instruction was entirely proper since exclusive possession may be "possession which is joint with one or more persons if it is shown that they acted in concert" (People v Shurn, 69 A.D.2d 64, 69).
The defendant made no objection at trial to the court's instructing the jury that it could not draw any unfavorable inference from the defendant's failure to testify. Consequently, his current claim that this instruction was improper is unpreserved for appellate review (see, People v Herbert, 100 A.D.2d 883). In any event, reversal in the interest of justice is unwarranted since it is unlikely in this case that the defendant suffered any prejudice from this instruction (see, People v Vereen, 45 N.Y.2d 856, 857; People v Herbert, supra).
The defendant's contention that statements by the prosecutor improperly referred to matters outside of the evidence presented at trial has not been preserved for appellate review (see, People v Young, 123 A.D.2d 366, 367, lv denied 68 N.Y.2d 919). In any event, the prosecutor's statements were all based on reasonable inferences from the evidence, and constituted fair comment (see, People v Swindall, 128 A.D.2d 819; People v Brown, 124 A.D.2d 667, lv denied 69 N.Y.2d 825, 833).
The defendant's sentence was not unduly harsh or excessive (see, People v Suitte, 90 A.D.2d 80; People v Mendez, 75 A.D.2d 400, 405-406).
The defendant's other contentions are either unpreserved for appellate review or without merit. Eiber, J.P., Kunzeman, Sullivan and Harwood, JJ., concur.