Opinion
May 31, 1996
Appeal from the Wayne County Court, Sirkin, J.
Present — Pine, J.P., Wesley, Callahan, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, defendant contends that the jury's verdict is against the weight of the evidence because the People failed to disprove his alibi beyond a reasonable doubt. "Determination of the credibility of witnesses is a task within the province of the jury, and its judgment should not be lightly disturbed" ( People v. DeJac, 219 A.D.2d 102, 106, citing People v. Gruttola, 43 N.Y.2d 116, 122). The jury was free to disbelieve defendant's alibi witnesses and to credit instead the testimony that defendant was regularly at the home where the two drug sales occurred ( see generally, People v. Germeo, 188 A.D.2d 1027, 1027-1028; People v. Marquez, 168 A.D.2d 393, lv denied 77 N.Y.2d 997; cf., People v. Oakes, 168 A.D.2d 984, 985, lv denied 78 N.Y.2d 957; People v. Salva, 156 A.D.2d 953).
Defendant further contends that County Court erred in allowing testimony on rebuttal concerning oral statements of defendant for which no CPL 710.30 notice had been given. Those statements, admissions that defendant resided at the home where the drug transactions occurred, fall within the pedigree exception to the notice requirement of CPL 710.30 ( see, People v. Rodney, 85 N.Y.2d 289, 293). Moreover, no CPL 710.30 notice was required because the statements were not used as evidence-in-chief, but instead were used on rebuttal to impeach defendant's contrary testimony ( see, People v. Mitchell, 155 A.D.2d 879, lv denied 76 N.Y.2d 739). Even assuming, arguendo, that the statements could have been offered as evidence-in-chief, there was no error in receiving them on rebuttal ( see, People v. Harris, 57 N.Y.2d 335, 345-346, cert denied 460 U.S. 1047; People v. Cavallo, 167 A.D.2d 884, 885, lv denied 77 N.Y.2d 876).