Opinion
April 15, 1994
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Pine, J.P., Balio, Lawton, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that Supreme Court erred in denying his motion to set aside the verdict on the ground of newly discovered evidence. Supreme Court, having been presented with conflicting affidavits and testimony from a confidential informant, was justified in finding that the newly discovered evidence was not credible and would not "create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant" (CPL 330.30; see, People v Rodriguez, 193 A.D.2d 363, 366, lv denied 81 N.Y.2d 1079; People v Watson, 152 A.D.2d 954, 955, lv denied 74 N.Y.2d 900; see also, People v Scarincio, 109 A.D.2d 928, 929).
Defendant further contends that he was denied a fair trial by the prosecutor's misconduct during cross-examination of defense witnesses, in introducing rebuttal testimony, and during summation. The majority of the alleged errors have not been preserved for our review (see, CPL 470.05), and we decline to consider them as a matter of discretion in the interest of justice (see, CPL 470.15). Additionally, defendant's contention that the People improperly adduced rebuttal testimony concerning collateral matters for the sole purpose of impeaching the credibility of a defense witness (see, People v Schwartzman, 24 N.Y.2d 241, 245-246, cert denied 396 U.S. 846) is unpreserved because defense counsel failed to object upon the ground now raised (see, People v Osuna, 65 N.Y.2d 822, 824; People v Cooper, 147 A.D.2d 926, lv denied 74 N.Y.2d 738).
Defense counsel, however, did preserve for review the prosecutor's questioning of a defense witness concerning whether she had been charged with a crime (see, People v Cook, 37 N.Y.2d 591, 596), the prosecutor's reference to a matter not in evidence (see, People v Wright, 41 N.Y.2d 172, 175), and the prosecutor's use of the term "smokescreen" (see, People v Clark, 195 A.D.2d 988, 990). Because those errors were not so egregious or prejudicial as to deprive defendant of a fair trial, reversal is not warranted (see, People v Roopchand, 107 A.D.2d 35, affd 65 N.Y.2d 837; People v Widger, 126 A.D.2d 962).