Opinion
October 12, 1995
Appeal from the Supreme Court, New York County (Renee White, J.).
The trial court properly denied defendant's request to submit lesser included offenses, because, based on the factual issues actually developed at trial, the jury could not have rationally concluded that defendant committed the lesser crimes but not the greater instead of simply acquitting him ( see, People v. Ruiz, 216 A.D.2d 63).
Defendant's claim that the trial court improperly denied his request to admit into evidence his alibi witness's date book as a prior consistent statement to rebut a claim of recent fabrication is unpreserved for appellate review as a matter of law, and we decline to review it in the interest of justice. If we were to review it, we would find that the People did not directly, or by inference, attack the alibi witness's testimony as a recent fabrication ( see, People v. Seit, 86 N.Y.2d 92, 96).
We find the sentence excessive to the extent indicated. We have considered defendant's remaining contentions and find them to be without merit.
Concur — Murphy, P.J., Rubin, Kupferman and Williams, JJ.