Opinion
May 7, 1999
Appeal from Judgment of Cayuga County Court, Corning, J. — Criminal Sale Marihuana, 2nd Degree.
Present — Denman, P. J., Hayes, Wisner, Hurlbutt and Callahan, JJ.
Judgment unanimously affirmed. Memorandum: Defendant did not object to the omission of an alibi charge and thus failed to preserve that issue for our review ( see, CPL 470.05; People v. Whalen, 59 N.Y.2d 273, 279-280; People v. Rivera, 256 A.D.2d 1098; People v. Hale, 124 A.D.2d 1025, lv denied 69 N.Y.2d 881). Also unpreserved for our review is the contention of defendant that there was an insufficient evidentiary foundation for the tape recording ( see, CPL 470.05). In any event, that contention is without merit ( see, People v. Ely, 68 N.Y.2d 520, 527; People v. McGee, 49 N.Y.2d 48, 59, cert denied sub nom. Waters v. New York, 446 U.S. 942; see also, People v. Lubow, 29 N.Y.2d 58, 68; People v. Gandy, 152 A.D.2d 909, lv denied 74 N.Y.2d 896). Upon our review of the tape recording, we conclude that County Court properly exercised its discretion in overruling defendant's inaudibility objection ( see, People v. Scarbrough, 254 A.D.2d 824, lv denied 92 N.Y.2d 1038; People v. Wade, 173 A.D.2d 662; People v. Watson, 172 A.D.2d 882, 883). Finally, the verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495).