In view of the court's thorough instructions on the People's burden of proof, there is no reasonable possibility that the jury could have construed the challenged portion of the People's summation as shifting that burden to the defense ( see People v. Planca, 225 A.D.2d 470, 471, lv denied 88 N.Y.2d 968). Furthermore, were we to find any error, we would find it to be harmless in view of the overwhelming evidence of defendant's guilt ( see People v. Crimmins, 36 N.Y.2d 230).
Since defendant did not move to suppress his DNA sample, CPL 710.70(3) forecloses review of his claim that it was obtained by means of an unlawful search and seizure. In any event, defendant's argument is unavailing ( see Executive Law § 995 et seq.; Kellogg v. Travis, 188 Misc.2d 164, 167, mod 298 A.D.2d 323, affd 100 N.Y.2d 407).
The court properly imposed consecutive sentences for the rape and sodomy, which were separate and discrete acts ( People v. Williams, 202 A.D.2d 347, 348, affd 85 N.Y.2d 886). We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.