PEOPLE v. CASTRECHINO (2005)

 Defendant appeals from a judgment convicting him following a jury trial of burglary in the second degree (Penal Law § 140.25 [2] ), intimidating a victim or witness in the third degree (§ 215.15[1] ), criminal mischief in the fourth degree (§ 145.00[1] ) and four counts of tampering with a witness in the fourth degree (§ 215.10).   We reject the contention of defendant that County Court's alibi charge impermissibly shifted the burden of proof to him (cf. People v. Jackson, 167 A.D.2d 893, 561 N.Y.S.2d 983).  “While the challenged portion of the court's alibi charge, to which there was no objection, was similar to that found improper in Jackson, it was immediately followed by five warnings that the People had the entire burden of disproving the alibi beyond a reasonable doubt.   Thus, the charge, as a whole, was proper” (People v. Smythe, 210 A.D.2d 949, 950, 620 N.Y.S.2d 677, lv. denied 85 N.Y.2d 943, 627 N.Y.S.2d 1005, 651 N.E.2d 930;  cf. People v. Branch, 224 A.D.2d 926, 637 N.Y.S.2d 892, lv. denied 87 N.Y.2d 1017, 644 N.Y.S.2d 150, 666 N.E.2d 1064).   We reject the further contention of defendant that the court erred in denying his challenge for cause to a prospective juror.   Although that prospective juror initially expressed views casting doubt on her impartiality, she ultimately stated unequivocally that she could be fair and impartial (see People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953;  People v. Garrido-Valdez, 299 A.D.2d 858, 749 N.Y.S.2d 450, lv. denied 99 N.Y.2d 614, 757 N.Y.S.2d 825, 787 N.E.2d 1171).

Defendant failed to preserve for our review his contention that the discrepancy between the date set forth in the indictment with respect to count 16 and the proof at trial rendered the proof legally insufficient to support his conviction of that count (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Madison, 8 A.D.3d 956, 957, 778 N.Y.S.2d 593, lv. denied 3 N.Y.3d 709, 785 N.Y.S.2d 36, 818 N.E.2d 678).   Defendant also failed to preserve for our review his related contention that such discrepancy deprived him of fair notice of the charge (see generally People v. Curtis, 186 A.D.2d 994, 588 N.Y.S.2d 455), 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] ).   Finally, we reject the contention of defendant that cumulative trial errors deprived him of a fair trial.

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

MEMORANDUM: