Opinion
February 2, 1993
Appeal from the Supreme Court, New York County (Allen Alpert, J.).
Defendant's claim that the victim's identification of him was incredible is meritless. Viewing the evidence in a light most favorable to the People, and considering that the jury is best able to determine credibility (People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), there is no reason to doubt the victim's identification of defendant. The victim had ample opportunity to observe defendant, and there was no evidence demonstrating that her addiction to drugs or her head injury rendered her testimony unreliable (see, People v Shedrick, 104 A.D.2d 263, 274, affd 66 N.Y.2d 1015).
Defendant's contention that he was improperly tried in New York County is without merit, as there was sufficient conduct by him within the county upon which to base the prosecution (CPL 20.40; People v Tullo, 34 N.Y.2d 712).
There is no merit to defendant's argument that the striking of the testimony of the People's rebuttal witness to defendant's alibi defense, and the curative instructions to disregard it, were not adequate to remedy the prejudice caused by its initial improper admission. First, it clearly would have been within the court's discretion to admit the challenged testimony even though it was of a type normally presented on the People's direct case (CPL 260.30). Second, assuming that the testimony was of a type that normally requires the filing of a rebuttal witness notice, the People's failure to file such a notice was excusable (see, CPL 250.20) since they could not be certain of the witness' availability until the day before he was called to testify because he was originally on defendant's alibi list, but not called to testify. Finally, there is no reason to suppose that the jury did not heed the court's curative instructions to disregard the testimony (see, People v Moore, 71 N.Y.2d 684, 688).
In light of defendant's criminal history and the specific circumstances of the instant crimes, there is no basis to disturb the trial court's imposed sentence.
Concur — Carro, J.P., Rosenberger, Ellerin and Kupferman, JJ.