Opinion
December 28, 1993
Appeal from the Supreme Court, Bronx County (Lawrence J. Tonetti, J.).
Defendant's contention that he was denied a fair trial by the court's instruction concerning his decision not to testify is unpreserved as a matter of law, no objection to the instruction having been made, and we decline to review the issue in the interest of justice. Were we to review, we would find that the instruction conveyed the appropriate standard (see, People v Nunez, 182 A.D.2d 527, lv denied 80 N.Y.2d 836). Also unpreserved as a matter of law is defendant's argument that he was denied a fair trial by the People's failure to disclose the name, address and identity of their main witness to the murder until selection of the jury, and we decline to review the issue in the interest of justice. Were we to review, we would find that the delayed disclosure was justified by a showing that the witness had been threatened and was in fear of defendant and his co-defendants.
Contrary to defendant's contention, his guilt of burglary in the first degree, as charged to the jury, was supported by the evidence (People v Bleakley, 69 N.Y.2d 490). We note that defendant did not object to the court's charge that he and his co-defendants could be found guilty if they entered the victim's dwelling without authority or permission of an owner, and that the main witness unequivocally testified that defendant and his co-defendants charged into the apartment in question at gunpoint.
We have considered defendant's remaining claims, including those that he incorporates by reference previously raised on the appeals of his co-defendants, and find them to be without merit (see, People v Ortiz, 173 A.D.2d 189, lv denied 78 N.Y.2d 1129; People v Sanchez, 177 A.D.2d 267, lv denied 79 N.Y.2d 863; People v Rivera, 183 A.D.2d 420, lv denied 80 N.Y.2d 933).
Concur — Sullivan, J.P., Wallach, Asch and Nardelli, JJ.