
    The People of the State of New York, Respondent, v Maurice Peoples, Appellant.
   Judgment unanimously affirmed. Memorandum: Defendant’s conviction was based upon legally sufficient evidence (CPL 70.10 [1]). Viewing the evidence in the light most favorable to the People, we find that a rational trier of fact could have found defendant guilty of the crimes charged beyond a reasonable doubt (People v Bauer, 113 AD2d 543, 548, Iv denied 67 NY2d 880). The credibility of the eyewitness was a matter to be determined by the trier of fact and we should not substitute our judgment for that of the jury (People v Hill, 115 AD2d 239).

While the court’s instructions to the jury as to the alibi defense were incorrect, no objection was made by defense counsel so the error is not preserved for our review (see, People v Victor, 62 NY2d 374; CPL 470.05 [2]). We decline to exercise our discretion in the interest of justice. The incorrect charge did not shift the burden of proof (cf., People v Cobenais, 112 AD2d 31, 32) and therefore defendant was not deprived of his right to a fair trial. Nor can we say that the sentence was harsh and excessive.

We have reviewed the contentions raised by defendant in his pro se brief and find them to be without merit. (Appeal from judgment of Supreme Court, Erie County, Armer, J.— murder, second degree, and other offenses.) Present—Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.  