PEOPLE v. TESTER (2007)

 Upon appeal from a judgment convicting him following a jury trial of burglary in the third degree (Penal Law § 140.20) and petit larceny (§ 155.25), defendant contends that County Court erred in failing to instruct the jury that the People had the burden of disproving his alibi defense beyond a reasonable doubt.   Defendant failed to preserve that contention for our review (see CPL 470.05[2] ) and, in any event, “the charge as a whole conveyed the necessary information regarding the People's burden of proof” (People v. Edwards, 3 A.D.3d 504, 505, 771 N.Y.S.2d 145, lv. denied 2 N.Y.3d 762, 778 N.Y.S.2d 780, 811 N.E.2d 42).   Defendant failed to preserve for our review his further contention that the court erred in allowing the prosecutor to cross-examine an alibi witness (see CPL 470.05 [2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   By failing to make a motion specifically directed at the alleged error raised on appeal, defendant also failed to preserve for our review his challenge to the legal sufficiency of the evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Finally, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: