People v. Tester

39 A.D.3d 1206, 834 N.Y.S.2d 765

Opinion

Memorandum: Upon appeal from a judgment convicting him following a jury trial of burglary in the third degree (Penal Law § 140.20) and petit larceny (§ 155.25), defendant contends that County Court erred in failing to instruct the jury that the People had the burden of disproving his alibi defense beyond a reasonable doubt. Defendant failed to preserve that contention for our review (see CPL 470.05 [2]) and, in any event, “the charge as a whole conveyed the necessary information regarding the People’s burden of proof’ (People v Edwards, 3 AD3d 504, 505 [2004], lv denied 2 NY3d 762 [2004]). Defendant failed to preserve for our review his further contention that the court erred in allowing the prosecutor to cross-examine an alibi witness (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). By failing to make a motion specifically directed at the alleged error raised on appeal, defendant also failed to preserve for our review his challenge to the legal sufficiency of the evidence (see People v Gray, 86 NY2d [1995]). Finally, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Present—Hurlbutt, J.P., Martoche, Smith, Centra and Peradotto, JJ.