Opinion
July 14, 1986
Appeal from the Supreme Court, Queens County (Leahy, J.).
Judgment affirmed.
Viewing the evidence in the light most favorable to the People, and bearing in mind that credibility is a matter to be determined by the trier of fact, the evidence was clearly sufficient to support the jury's verdict (see, People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932). It was rational in this case for the jury to credit the identification testimony of the complainant, to disbelieve the alibi defense presented by the defendant, and to conclude thereby that the defendant's guilt had been proven beyond a reasonable doubt (see, People v Jackson, 114 A.D.2d 858).
The defendant's claim that "inflammatory" and "abusive" comments made by the prosecutor constituted reversible error, has not been preserved for appellate review (see, People v George, 108 A.D.2d 870, 871), and in any event lacks merit. While some of the prosecutor's comments were somewhat strong, they were not so egregious or pervasive as to prejudice the defendant's case (see, People v Galloway, 54 N.Y.2d 396, 401; People v Roopchand, 107 A.D.2d 35, 36, affd 65 N.Y.2d 837).
The prosecutor's comments during summation concerning the failure of the defendant's alibi witness to come forward to the defense attorney prior to the first day of trial were proper. The defense attorney had initially elicited testimony concerning the witness's failure to contact him prior to the first day of trial and had made extensive comments trying to explain this failure during his summation. This plainly "opened the door" for the comments made by the prosecutor (see, People v Roseman, 78 A.D.2d 878, 881; People v Singletary, 54 A.D.2d 767).
The defendant's argument that his postarrest statement should have been suppressed because of the failure of the arresting officer to inquire as to whether the defendant had representation in any pending cases prior to taking the statement is also erroneous. In view of the defendant's failure to establish that he in fact had representation in any pending cases, or that the arresting officer had knowledge of these pending cases, or that the police otherwise acted in bad faith, this claim is without adequate support (see, People v Rosa, 65 N.Y.2d 380, 387; People v Bertolo, 65 N.Y.2d 111, 121).
We have reviewed the defendant's other contentions and find them to lack merit. Mangano, J.P., Gibbons, Bracken and Spatt, JJ., concur.