Opinion
November 23, 1987
Appeal from the County Court, Suffolk County (Seidell, J.).
Ordered that the judgment is affirmed.
The defendant contends that it was error to permit the People to use his prior statement on cross-examination and again on rebuttal, to the effect that the only thing he had going for him was the fact that the authorities would never find the murder weapon, where no notice of that statement had been provided pursuant to CPL 710.30. While this court has heretofore indicated that the better practice would be for the People to provide such notice (People v. Williams, 131 A.D.2d 525; People v. Barrie, 74 A.D.2d 576; cf., People v. Webb, 97 A.D.2d 779), the statute does not require that such notice be provided where a statement made by a defendant is being used solely for purposes of impeachment (CPL 710.30; People v Harris, 25 N.Y.2d 175, affd 401 U.S. 222). Moreover, in the instant case the proper foundation was laid for the use of the statement, since on cross-examination the defendant denied that he had ever been asked any question pertaining to the gun (see, People v. Maerling, 64 N.Y.2d 134; People v. Wise, 46 N.Y.2d 321), and, once the door was opened, it was proper for the People to call as a rebuttal witness the detective to whom the statement had been made (see, People v. Wise, supra).
Similarly without merit is the defendant's contention that his guilt was not established. Upon the exercise of our factual review power, we are satisfied that the evidence, which included the testimony of eyewitnesses as well as the defendant's confession, established the defendant's guilt beyond a reasonable doubt, and the verdict was not against the weight of the evidence (see, CPL 470.15). In fact, the evidence was overwhelming. Further, the defendant's contention that the court erred in admitting rebuttal testimony concerning the credibility of certain witnesses (see, People v. Rivers, 96 A.D.2d 874) was not preserved for appellate review (see, People v. Ramirez, 125 A.D.2d 343, lv denied 69 N.Y.2d 885) and, in any event, any error in this regard was harmless in light of the overwhelming evidence of the defendant's guilt (see, People v. Crimmins, 36 N.Y.2d 230).
Finally, we conclude that the sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80). Brown, J.P., Eiber, Kunzeman and Spatt, JJ., concur.