Opinion
December 5, 1995
Appeal from the Supreme Court, Bronx County (Alexander Hunter, J.).
Upon an independent review of the record, we conclude that the jury accorded appropriate weight to the credible evidence and the verdict was not against the weight of the evidence ( People v Bleakley, 69 N.Y.2d 490; Matter of William J., 203 A.D.2d 144, 145).
Having neither requested an alibi charge, nor raised any objection that no such charge was given, defendant has failed to preserve this issue for appellate review (CPL 470.05; People v Howell, 174 A.D.2d 356, lv denied 78 N.Y.2d 1012), and we decline to review it in the interest of justice. Were we to review it, we would find that the defendant's sister's testimony that defendant was home on the evening prior to the robbery, and that their mother, who did not testify, would have known if he left the apartment, had insufficient nexus to defendant's whereabouts at the time and place of the robbery to warrant an alibi charge ( cf., People v Holt, 67 N.Y.2d 819).
Insofar as the trial record permits us to review defendant's claim that he was denied the effective assistance of counsel, we find it to be without merit. Trial counsel's decision not to pursue a weak alibi defense was reasonable ( see, People v McKenzie, 196 A.D.2d 763, lv denied 82 N.Y.2d 927). Absent a basis to conclude that material alibi witnesses were available at the time of trial, defendant's claim of ineffective assistance of counsel in this regard is without factual support ( People v Ford, 46 N.Y.2d 1021; People v Aiken, 45 N.Y.2d 394).
Concur — Murphy, P.J., Kupferman, Asch, Nardelli and Tom, JJ.