Opinion
May 15, 1989
Appeal from the Supreme Court, Kings County (Fisher, J.).
Ordered that the judgment is affirmed.
During the course of the defendant's trial, an undercover officer testified that he identified the defendant at the precinct and also identified the defendant in court. Thereafter, on redirect examination, the undercover officer was permitted to testify, over objection, that on 4 or 5 prior unrelated occasions, he had told his supervisor that a person arrested was not the person from whom he made a purchase of a controlled substance, and the arrest was voided. That testimony was irrelevant and improperly enhanced the undercover officer's general credibility as an identification witness. An eyewitness's ability to identify one perpetrator is not necessarily probative of the accuracy of his identification of another (cf., People v Bolden, 58 N.Y.2d 741, 744-745 [Gabrielli, J., concurring]; People v Rosario, 127 A.D.2d 209, 215, lv denied 70 N.Y.2d 655; People v Moss, 103 Misc.2d 245, 247). However, in light of the strong identification evidence which overwhelmingly proved the defendant's guilt beyond a reasonable doubt, the error was harmless (see, People v Johnson, 57 N.Y.2d 969; People v Crimmins, 36 N.Y.2d 230; People v Dukes, 97 A.D.2d 445).
The defendant also seeks a reversal of his conviction on the ground he was denied a fair trial due to several prejudicial remarks of the prosecutor in summation. However, with few exceptions, the defendant failed to object to the summation comments and any issue of law with respect to his complaints is not preserved for review (see, CPL 470.05; People v Balls, 69 N.Y.2d 641, 642; People v Nuccie, 57 N.Y.2d 818, 819).
With respect to the preserved claims, we find that certain comments of the prosecutor were a proper response to the defense counsel's summation in which he attacked the credibility of the prosecution witnesses by suggesting that they were guilty of "exaggeration" (see, People v Roccaforte, 141 A.D.2d 775, 776; People v Street, 124 A.D.2d 841, lv denied 69 N.Y.2d 834; People v Colon, 122 A.D.2d 151, lv denied 68 N.Y.2d 810). The prosecutor inaccurately attributed to the undercover officer a more complete description of the perpetrator than the officer gave in his testimony, and also made speculative remarks to the jury concerning the possible places the "buy money" could have been secreted. However, the trial court instructed the jury that their recollection of the evidence controlled and they were not to speculate. Since the defense counsel did not seek any further ameliorative action, it must be assumed that any defect was cured to the defense counsel's satisfaction (see, People v Medina, 53 N.Y.2d 951, 953; People v Walters, 116 A.D.2d 757, 758, lv denied 67 N.Y.2d 891). In any event, in view of the overwhelming evidence of the defendant's guilt, the claimed errors, either individually or cumulatively, do not warrant reversal of the conviction (see, People v Ashwal, 39 N.Y.2d 105; People v Torres, 121 A.D.2d 663, 664). Kunzeman, J.P., Rubin, Spatt and Balletta, JJ., concur.