Opinion
December 7, 1995
Appeal from the Supreme Court, New York County (Jerome Hornblass, J.).
Defendant's arguments concerning the People's rebuttal testimony are unpreserved for appellate review, no objection having been made to its admission ( see, People v Acosta, 180 A.D.2d 505, 507-508, lv denied 80 N.Y.2d 827), and we decline to review them in the interest of Justice. If we were to review them, we would find that the rebuttal testimony was properly admitted, in the court's discretion, to refute defendant's testimony suggesting that he did not fit the description of the perpetrator ( see, CPL 260.30; People v. Harris, 57 N.Y.2d 335, 345-346, cert denied 460 U.S. 1047; People v Rojas, 200 A.D.2d 545, lv denied 83 N.Y.2d 857). Defendant's claim that the court failed to respond to a jury note cannot be reviewed, on this direct appeal, in the absence of factual record which it was defendant's burden to provide ( see, People v Kinchen, 60 N.Y.2d 772; People v Church, 217 A.D.2d 444, 445; People v Roman, 217 A.D.2d 494).
Concur — Sullivan, J.P., Ellerin, Ross, Nardelli and Tom, JJ.