Opinion
April 22, 1985
Appeal from the Supreme Court, Queens County (Naro, J.).
Judgment affirmed. This case is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (5).
Defendant involved himself in an altercation with the manager of a gas station during the course of which he allegedly stabbed the manager with a knife. There was no issue of identification and the case presented a pure question of credibility which was resolved against the defendant by the jury. The eviction was sufficient in quantity and quality to support the verdict and to establish defendant's guilt beyond a reasonable doubt ( People v Bigelow, 106 A.D.2d 448).
Defendant's claim that the trial court refused to admit evidence that the manager, who testified against him, had commenced a civil suit against him, which would tend to demonstrate possible bias or prejudice ( see, Ann., 98 ALR3d 1060, § 2) has no basis in the record. Defendant sought to use a portion of the civil complaint in cross-examination solely as a prior inconsistent statement and pursued another line of questioning after the manager stated that he had never seen the complaint. Since defense counsel never sought to admit the civil complaint to establish prejudice or bias, the trial court never passed on the question. We decline to exercise interest of justice review in such circumstances ( cf. People v. Waytes, 107 A.D.2d 774; People v Delee, 106 A.D.2d 395).
Although several of the prosecutor's remarks would have been better left unsaid, when objection was made appropriate admonitions were given which were sufficiently curative. Interest of justice review of the unprotected remarks is not warranted. We are convinced that the jury focused on the issue before it and that defendant received a fair trial ( People v. Galloway, 54 N.Y.2d 396, 399; People v. Roopchand, 107 A.D.2d 35).
Finally, the sentence imposed does not warrant appellate modification ( People v. Suitte, 90 A.D.2d 80). Titone, J.P., Thompson, Bracken and Rubin, JJ., concur.