PEOPLE v. FARINO (2005)

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered April 4, 2002, convicting him of murder in the second degree and arson in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contentions that it was error to charge the jury on both intentional murder (see Penal Law § 125.25[1] ) and depraved indifference murder (see Penal Law § 125.25[2] ), and that the evidence was legally insufficient to support a conviction of depraved indifference murder (see Penal Law § 125.25[2];  People v. Payne, 3 N.Y.3d 266, 786 N.Y.S.2d 116, 819 N.E.2d 634) are unpreserved for appellate review (see CPL 470.05 [2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and we decline to reach them in the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c], [6][a] ).

 Most of the errors allegedly made by the prosecutor on summation were not objected to by defense counsel and therefore, are also unpreserved for appellate review (see People v. Rivera, 73 N.Y.2d 941, 540 N.Y.S.2d 233, 537 N.E.2d 618).   With respect to the only preserved issue, the court clearly instructed the jury that the burden of proof remained on the People and did not shift to the defendant (see People v. Martinez, 5 A.D.3d 278, 774 N.Y.S.2d 680).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).