People v. Broadie

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered November 4, 1991, convicting [353] him of murder in the second degree, attempted murder in the second degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s challenge to the trial court’s refusal to charge criminally negligent homicide (see, Penal Law § 125.10) as a lesser-included offense of murder in the second degree (see, Penal Law § 125.25 [1]) is foreclosed due to the jury’s verdict finding him guilty of murder in the second degree, the crime alleged in the indictment, and its implicit rejection of the charged lesser-included offenses of first and second degree manslaughter (see, People v Richette, 33 NY2d 42; People v Cruz, 191 AD2d 507; People v Rammelkamp, 167 AD2d 560). The defendant’s contention that the prosecutor’s summation improperly tended to shift the burden of proof to the defense is not preserved for appellate review (see, CPL 470.05 [2]; People v Balls, 69 NY2d 641). In any event, the remarks did not improperly shift the burden of proof (see, People v Thomas, 186 AD2d 602). Finally, the defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80). Balletta, J. P., Miller, O’Brien and Copertino, JJ., concur.