The People of the State of New York, Respondent, v. Thomas Stallings, Appellant

The People of the State of New York, Respondent, v Thomas Stallings, Appellant. [MAJORITY] — Judgment, Supreme Court, Bronx County (Lawrence Bernstein, J.), rendered January 10, 1989, which convicted defendant, after a jury trial, of murder in the second degree, and upon his plea of guilty, of attempted burglary in the second degree, and sentenced him to concurrent terms of 20 years to life and 1 to 3 years, respectively, unanimously affirmed. Defendant’s claim that the trial court erred in instructing the jury that there was no death penalty in New York State is unpreserved for appellate review (see generally, People v Thomas, 50 NY2d 467, 470-472). In any event, were we to reach it in the interest of justice we would reject the claim since the trial court merely attempted to rectify any misconception the jurors might have had after hearing defense counsel, during his summation, inappropriately imply that defendant might be subject to that punishment (cf., People v Garcia, 63 AD2d 719). Concur — Sullivan, J. P., Carro, Milonas and Kupferman, JJ.