Opinion
Argued May 2, 1980
Decided June 12, 1980
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOSEPH D. QUINN, JR., J.
David G. Secular and William E. Hellerstein for appellant. Mario Merola, District Attorney (Carol Kendrick and Alan D. Marrus of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Appellant tenders two issues. With respect to the first — the propriety of the prosecutor's cross-examination of defendant as to his failure at the time of his arrest to come forward with the exculpatory version of the episode to which he testified on trial — it appears that the issue is not preserved for our review inasmuch as no timely protest was registered.
As to the second — the propriety of the denial of defendant's motion to preclude cross-examination with respect to the facts underlying a prior charge of reckless endangerment — there is nothing to warrant our disturbing the determination of the Appellate Division (cf. People v Mackey, 49 N.Y.2d 274). Any error in the trial court's failure to instruct the jury that this testimony should be considered for purposes of impeachment only was not preserved in view of the absence of any request for such instruction.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed in a memorandum.