PEOPLE v. MALLORY

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Ezel MALLORY, Defendant-Appellant.

Decided: February 18, 1999

ROSENBERGER, J.P., NARDELLI, TOM and ANDRIAS, JJ. John Pashby, for respondent. Robert S. Dean, for defendant-appellant.

Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered December 12, 1996, convicting defendant, after a jury trial, of criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

 Since defendant's objections to the court's supplemental charge on possession did not alert the court to the arguments raised on appeal, defendant has not preserved these arguments (see, People v. Jackson, 76 N.Y.2d 908, 563 N.Y.S.2d 42, 564 N.E.2d 652;  People v. Nuccie, 57 N.Y.2d 818, 819, 455 N.Y.S.2d 593, 441 N.E.2d 1111), and we decline to review them in the interest of justice.   Were we to review these claims, we would find that the supplemental charge was fair and did not express any opinion with respect to resolution of the issues, and that the hypothetical example was not excessively similar to the facts of the case (see, People v. Schenkman, 46 N.Y.2d 232, 239, 413 N.Y.S.2d 284, 385 N.E.2d 1214).   Further, the court instructed the jury that it had no opinion and it is presumed that the jury followed that instruction (People v. Davis, 58 N.Y.2d 1102, 462 N.Y.S.2d 816, 449 N.E.2d 710).

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.