Opinion
July 7, 2000.
Appeal from Judgment of Onondaga County Court, Mulroy, J. — Robbery, 2nd Degree.
PRESENT: GREEN, J.P., HAYES, HURLBUTT AND KEHOE, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant's contention that County Court should have precluded the in-court identification by the eyewitness for lack of notice pursuant to CPL 710.30 (1) (b) is not preserved for our review because defendant failed to move to preclude the evidence on that ground ( see, CPL 470.05; People v. Pagan, 248 A.D.2d 325, affd 93 N.Y.2d 891). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). The further contention of defendant that the prosecutor's failure to provide Brady material denied him a fair trial is also unpreserved for our review ( see, CPL 470.05). In any event, that contention lacks merit because defendant was aware of the exculpatory material and used it in cross-examining the eyewitness and during summation ( see, People v. Brown, 67 N.Y.2d 555, 559, cert denied 479 U.S. 1093). Finally, the contention of defendant that he was denied a fair trial by prosecutorial misconduct during summation also is unpreserved for our review because defendant did not object to the allegedly inappropriate comments ( see, People v. Tonge, 93 N.Y.2d 838, 839-840; People v. Wright [appeal No. 2], 269 A.D.2d 831 [decided Feb. 16, 2000]). In any event, the prosecutor's comments constituted fair response to defense counsel's summation ( see, People v. Robinson, 267 A.D.2d 981; People v. Kidd, 265 A.D.2d 859, lv denied 94 N.Y.2d 824) and "did not exceed the broad bounds of rhetorical comment permissible in closing argument" ( People v. Galloway, 54 N.Y.2d 396, 399). Contrary to defendant's contention, the prosecutor did not shift the burden of proof to the defense ( see, People v. Olds, 222 A.D.2d 531, 531-532, lv denied 88 N.Y.2d 882).