Susan Pestarino, as Administratrix of the Estate of John Pestarino, Deceased, Appellant, v. Town of Islip, Defendant, and County of Suffolk et al., Respondents

Susan Pestarino, as Administratrix of the Estate of John Pestarino, Deceased, Appellant, v Town of Islip, Defendant, and County of Suffolk et al., Respondents. [MAJORITY] —In a negligence action to recover damages for personal injuries and wrongful death, plaintiff appeals, as limited by her letter and brief, from so much of a judgment of the Supreme Court, Suffolk County (McCarthy, J.), entered October 19, 1983, as, upon a jury verdict, dismissed the action as against defendants County of Suffolk and the Police Department of Suffolk County. Judgment affirmed, insofar as appealed from, without costs or disbursements. Although appellate counsel makes a cogent and vigorous argument that the trial court’s charge on circumstantial evidence was erroneous, the record makes it apparent that the issue was not preserved for appellate review. In his exception to the charge, trial counsel declared that the court had misstated the effect of equal inferences. On appeal, plaintiff changes her focus and for the first time claims that the court failed to use the word "equal” in the charge. Under the circumstances, the trial court was not informed of the alleged error and the facts of this case do not warrant reaching the question in the interest of justice. Lazer, J. P., Mangano, Gibbons and Weinstein, JJ., concur.