Opinion
June 6, 1996
Appeal from the Supreme Court, New York County (Bruce Allen, J.).
Defendant's claim that it was error to permit the People to elicit, on its rebuttal case, testimony from a detective and an identifying witness concerning a photographic identification that preceded a lineup identification is unpreserved for review ( People v. Beejack, 188 A.D.2d 273, lv denied 81 N.Y.2d 881), and we decline to review it in the interest of justice. If we were to review it, we would find that defendant had affirmatively placed the existence and integrity of a photographic identification in issue, thereby opening the door to the rebuttal evidence ( People v. Collins, 214 A.D.2d 483, lv denied 86 N.Y.2d 733). We also reject defendant's claim that the prosecutor improperly adduced evidence of the codefendant's "guilt", no reference having been made to codefendant's conviction or guilty plea, but only to the fact that some of the proceeds of the burglary were recovered from his possession ( compare, People v. Colascione, 22 N.Y.2d 65, 73-74; People v. Martinez, 164 A.D.2d 826, lv denied 76 N.Y.2d 1022). Concerning the prosecutor's summation, since defendant failed to call the very witnesses essential to his alibi defense, the prosecutor could comment in good faith on their absence, without a showing of availability and control, criteria that apply only in the context of a missing witness instruction ( People v. Tankleff, 84 N.Y.2d 992). We have considered defendant's remaining contentions and find them to be without merit.
Concur — Milonas, J.P., Rosenberger, Ross and Tom, JJ.