
    The People of the State of New York, Respondent, v Andre Haskins, Appellant.
    [607 NYS2d 323]
   Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered March 19, 1992, convicting defendant, after a jury trial, of robbery in the first degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fifth degree, and sentencing him, as a second felony offender, to concurrent prison terms of 6 to 12 years, 2 to 4 years, and 1 year, respectively, unanimously affirmed.

Defendant’s contention that the court’s alibi charge erroneously failed to instruct the jury that it could disbelieve the alibi and still acquit defendant is unpreserved for appellate review as a matter of law, no objection to this aspect of the charge having been made at trial (CPL 470.05 [2]), and we decline to review the issue in the interest of justice. If we were to review, we would find that the charge, viewed as a whole, adequately conveyed the People’s burden of proving beyond a reasonable doubt that defendant was the person who committed the crime charged. Also unpreserved as a matter of law for failure to make timely objection is defendant’s contention that the prosecutor’s summation improperly suggested that the alibi witness was the unapprehended perpetrator, and improperly denigrated the defense, and we decline to review such comments in respect to their purported effect on defendant’s right to a fair trial. Were we to do so, we would find that the prosecutor’s summation was fair comment on the evidence (see, People v Pacheco, 192 AD2d 319, lv denied 81 NY2d 1017). Finally, since defendant never requested the court to conduct an inquiry concerning a juror who was allegedly "nodding off” during the summation and charge, the record is insufficient to conclude "as a matter of law, that the trial court was required, in this instance, to determine whether the juror was 'grossly unqualified’ to render a verdict” (People v Ferguson, 165 AD2d 789, lv denied 77 NY2d 838). Concur — Murphy, P. J., Sullivan, Ross, Rubin and Tom, JJ.  