Opinion
February 10, 1994
Appeal from the Supreme Court, Bronx County (Phylis Skloot Bamberger, J.).
Defendant's contention that the court's alibi charge erroneously failed to instruct the jury that it could disbelieve the alibi and still acquit defendant is unpreserved for appellate review as a matter of law, no objection to this aspect of the charge having been made at trial (CPL 470.05), and we decline to review the issue in the interest of justice. If we were to review, we would find that the charge, viewed as a whole, adequately conveyed the People's burden of proving beyond a reasonable doubt that defendant was the person who committed the crime charged. Also unpreserved as a matter of law for failure to make timely objection is defendant's contention that the prosecutor's summation improperly suggested that the alibi witness was the unapprehended perpetrator, and improperly denigrated the defense, and we decline to review such comments in respect to their purported effect on defendant's right to a fair trial. Were we to do so, we would find that the prosecutor's summation was fair comment on the evidence (see, People v Pacheco, 192 A.D.2d 319, lv denied 81 N.Y.2d 1017). Finally, since defendant never requested the court to conduct an inquiry concerning a juror who was allegedly "nodding off" during the summation and charge, the record is insufficient to conclude "as a matter of law, that the trial court was required, in this instance, to determine whether the juror was `grossly unqualified' to render a verdict" (People v Ferguson, 165 A.D.2d 789, lv denied 77 N.Y.2d 838).
Concur — Murphy, P.J., Sullivan, Ross, Rubin and Tom, JJ.