The trial court did not constructively amend the indictment by instructing the jury that it could consider the property stolen to be either the bag containing the 17 vials of crack cocaine or the bracelet as alleged in the indictment, where such variance was based on defendant's own testimony that he committed a different version of the crime ( People v. Spann, 56 N.Y.2d 469). Defendant did not preserve his claim that the court was required to provide a claim-of-right charge (Penal Law § 155.15), and we decline to review it in the interest of justice. Were we to review this contention, we would find that defendant's testimony failed to support such a charge.
Concur — Sullivan, J.P., Milonas, Rubin, Williams and Andrias, JJ.