People v. Mitchell
| Decision Date | 15 November 1989 |
| Parties | PEOPLE of the State of New York, Respondent, v. Maurice MITCHELL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Edward J. Nowak by Mary Casey, Rochester, for appellant.
Howard R. Relin by Mark Pedersen, Rochester, for respondent.
Before CALLAHAN, J.P., and DENMAN, GREEN, PINE and BALIO, JJ.
The trial court did not err in permitting cross-examination of defendant regarding a statement he made to police. Defense counsel objected on the ground that no CPL 710.30 notice had been served, but raised no objection upon the ground of voluntariness. Thus that issue was not properly preserved for our review (see, People v. DeBlase, 142 A.D.2d 926, 530 N.Y.S.2d 352; People v. Balschweit, 91 A.D.2d 1127, 458 N.Y.S.2d 730). Moreover, a CPL 710.30 notice was not required. The statement was not used as evidence-in-chief but was utilized on cross-examination and rebuttal solely to impeach defendant's testimony on direct examination regarding the time that he fell (see, People v. Rudolph, 134 A.D.2d 539, 521 N.Y.S.2d 304, lv. denied 71 N.Y.2d 902, 527 N.Y.S.2d 1012, 523 N.E.2d 319; People v. Bowden, 104 A.D.2d 695, 480 N.Y.S.2d 579).
The claimed instances of prosecutorial misconduct do not warrant reversal (see, People v. Rosemond, 126 A.D.2d 962, 511 N.Y.S.2d 736, lv. denied 69 N.Y.2d 886, 515 N.Y.S.2d 1034, 507 N.E.2d 1104; People v. Mott, 94 A.D.2d 415, 465 N.Y.S.2d 307). The summation remarks were made in response to defense counsel's attack upon the credibility of the victim and constituted fair comment (see, People v. Rubin, 101 A.D.2d 71, 77-78, 474 N.Y.S.2d 348) and as to one comment, the court gave a curative instruction, thereby reducing any prejudicial impact (see, People v. Evans, 148 A.D.2d 979, 539 N.Y.S.2d 215, lv. denied 74 N.Y.2d 739, 545 N.Y.S.2d 113, 543 N.E.2d 756).
We have reviewed the remaining claims of error raised by defendant and find them to be either unpreserved (see, CPL 470.05[2] or harmless (see, People v. Johnson, 57 N.Y.2d 969, 457 N.Y.S.2d 230, 443 N.E.2d 478; People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
Judgment unanimously affirmed.
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