Opinion
No. 73.
Argued March 22, 2011.
Decided May 3, 2011.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered March 18, 2010. The Appellate Division affirmed a judgment of the Supreme Court, Bronx County (Peter J. Benitez, J.), which had convicted defendant, upon a jury verdict, of burglary in the second degree.
People v Melendez, 71 AD3d 530, affirmed.
Office of the Appellate Defender, New York City ( Lisa A. Packard and Richard M. Greenberg of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx ( Rafael Curbelo, Jennifer Marinaccio and Joseph N. Ferdenzi of counsel), for respondent.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed. Defendant's claim that the trial court erred in not unequivocally conveying to the jury that the People were required to disprove defendant's alibi defense beyond a reasonable doubt ( see People v Victor, 62 NY2d 374) is unpreserved.
During the charge conference, defense counsel asked the court to deliver an alibi charge, arguing that the People must disprove alibi beyond a reasonable doubt. The court agreed to give the charge, noting that the pattern Criminal Jury Instruction had been amended to provide that the People could meet that burden by proving beyond a reasonable doubt that defendant committed the crime. The following day, the court showed the parties its proposed alibi charge, and again pointed out that the charge had recently been modified. Defense counsel neither objected to the court's proposed charge nor voiced an objection to the charge after it was given to the jury, thereby failing to alert the trial court to his current claim that the amended charge did not adequately instruct the jury that the People bear the burden of disproving a defendant's alibi defense ( see People v Whalen, 59 NY2d 273, 279-280).
Likewise unpreserved are defendant's contentions that the alibi charge and certain of the prosecutor's comments during summation shifted the burden of proof to defendant ( see CPL 470.05).
Order affirmed in a memorandum.