Opinion
5553
December 11, 2001.
Judgment, Supreme Court, New York County (Harold Beeler, J.), rendered March 28, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.
Richard Nahas, for respondent.
Jan Hoth-uzzo, for defendant-appellant.
Before: Sullivan, P.J., Nardelli, Andrias, Rubin, Saxe, JJ.
Defendant's challenge to the court's admission of the detective's rebuttal testimony is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the rebuttal testimony was properly admitted since it was a direct response to material facts placed in issue by defendant's own testimony suggesting that the police had mistaken him for another individual (see, People v. Harris, 57 N.Y.2d 335, 343-346, cert denied, 460 U.S. 1047). Even if the rebuttal testimony were to be viewed as including matters that should have been introduced on the People's direct case, the court had discretion to receive such evidence (CPL 260.30).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.