People v. Burgess

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (McMahon, J.), rendered October 19, 1981, convicting him of robbery in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The defendant contends that the trial court erred in failing to issue an alibi charge. We disagree. The defendant neither requested an alibi charge (cf. People v Baker, 23 NY2d 307, 325) nor did he except to the failure of the court to render such a charge. This issue was therefore not preserved for our review as a matter of law (see, CPL 470.05 [2]). We further note that the defendant did not, in any event, present any evidence at trial to support a conclusion that he was at some place other than at the scene of the crime at the time of its commission. We therefore decline to exercise our interest of justice discretion. Weinstein, J. P., Niehoff, Kunzeman and Spatt, JJ., concur.