Opinion
Decided June 5, 2001.
APPEAL, by permission of a justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered August 3, 2000 (as corrected Nov. 30, 2000), which affirmed a judgment of the Supreme Court (Allen Alpert, J.), rendered in New York County upon a verdict convicting defendant of robbery in the first and second degrees.
After a jury trial, defendant was convicted of robbery in the first and second degrees. The Appellate Division affirmed, concluding that Supreme Court properly exercised its discretion in permitting the People to cross-examine defendant's main alibi witness concerning her fear of defendant and in permitting rebuttal testimony to challenge the witness's testimony, and that by failing to object, failing to make specific objections, or by failing to request further relief after objections were sustained, defendant failed to preserve his various challenges to the People's summation.
Office of the Appellate Defender, New York City ( DANIEL A. WARSHAWSKY of counsel), for appellant.
ROBERT M. MORGENTHAU, District Attorney of New York County, New York City ( DEBORAH L. MORSE and SUSAN GLINER of counsel), for respondent.
Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, WESLEY, ROSENBLATT and GRAFFEO concur.
MEMORANDUM
The order of the Appellate Division should be affirmed. The motivation of defendant's main alibi witness to fabricate testimony was not collateral and, therefore, Supreme Court did not abuse its discretion in permitting cross-examination of the witness or in admitting rebuttal testimony refuting the alibi witness's claims. We note the point raised by defendant as to the prosecutor's improper comments during the summation, but are unable to reach it. We do not condone the summation and base our affirmance solely on defendant's failure to preserve the issue. Defendant's remaining argument regarding the court's charge is likewise unpreserved (People v. Thomas, 50 N.Y.2d 467, 471-472).
On review of submissions pursuant to section 500.4 of the Rules, order affirmed, in a memorandum. Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.