Opinion
1515
June 24, 2003.
Judgment, Supreme Court, New York County (Micki Scherer, J.), rendered August 16, 2001, convicting defendant, after a jury trial, of robbery in the first degree (two counts), robbery in the second degree (two counts) and unlawful imprisonment in the first degree, and sentencing him to four concurrent terms of 15 years concurrent with a term of 1 to 4 years, unanimously affirmed.
Alan Gadlin, for respondent.
Robert DiDio, for defendant-appellant.
Before: Buckley, P.J., Tom, Sullivan, Marlow, JJ.
The totality of the record establishes that defendant received effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 713-714; People v. Hobot, 84 N.Y.2d 1021, 1024), notwithstanding the fact that his trial counsel did not request an alibi charge concerning defendant's unbelievable and uncorroborated alibi testimony (see People v. Coleman, 283 A.D.2d 321, lv denied 96 N.Y.2d 917). The court's charge conveyed the same principles as those underlying an alibi instruction (see People v. Warren, 76 N.Y.2d 773; People v. Anderson, 268 A.D.2d 368,lv denied 95 N.Y.2d 793), and the absence of an alibi instruction did not deprive defendant of a fair trial.
Defendant did not preserve his contention that the court improperly permitted the People to introduce, on their direct case, evidence of defendant's efforts to manufacture a false alibi, and we decline to review it in the interest of justice. Were we to review this claim, we would find that evidence that defendant proffered a false alibi constituted affirmative evidence of his consciousness of guilt (see People v. Ficarrota, 91 N.Y.2d 244, 250). Accordingly, it was admissible on the People's direct case regardless of whether or not defendant chose to present an alibi defense at trial.
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
Motion seeking leave to strike brief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.