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 N.Y.2d 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 A.D.2d 719).
Concur — Sullivan, J.P., Carro, Milonas and Kupferman, JJ.