Opinion
November 24, 1986
Appeal from the Supreme Court, Queens County (Bianchi, J.).
Ordered that the judgment is affirmed.
The defendant's contention that the trial court's alibi charge failed to unequivocally state that the People have the burden of disproving an alibi beyond a reasonable doubt (People v Victor, 62 N.Y.2d 374, 378) and impermissibly shifted to him the burden of proof has not been preserved for our review as a matter of law (see, People v Hoke, 62 N.Y.2d 1022). In any event, while the alibi charge was not exemplary (cf. 1 CJI [NY] 12.10 pp 696-697), the charge as a whole adequately apprised the jury of the relevant concepts to be applied (see, People v Canty, 60 N.Y.2d 830).
Moreover, although several of the prosecutor's remarks during summation might otherwise have been seen as exceeding the bounds of rhetorical comment, they must be evaluated in comparison with the summation of the defense (see, People v Payne, 111 A.D.2d 938). Particularly where, as here, the defense questioned the ability of the People's witness to be truthful (see, People v Colon, 122 A.D.2d 151), the comments made by the prosecutor in his summation were not unreasonable and did not deprive the defendant of a fair trial.
The defendant's remaining contention is unpreserved for our review and we find it unnecessary to consider its merits in the interest of justice. Thompson, J.P., Bracken, Lawrence and Eiber, JJ., concur.