Opinion
No. 481 KA 03-01547.
April 20, 2007.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered July 8, 2003. The judgment convicted defendant, upon a jury verdict, of burglary in the third degree and petit larceny.
MICHAEL J. VIOLANTE, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
MATTHEW J. MURPHY, III, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
Present — Hurlbutt, J.P., Martoche, Smith, Centra and Peradotto, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
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) 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, 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), 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 [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 10, 19 [1995]). Finally, the verdict is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495 [1987]).