Opinion
October 5, 1995
Appeal from the Supreme Court, New York County (Ronald Zweibel, J.).
Defendant's claims that the court improperly modified its Sandoval ruling to permit reference to a prior conviction involving a gun and that the prosecutor compelled defendant to characterize the People's witnesses as liars are unpreserved for appellate review as a matter of law ( see, People v. Fleming, 70 N.Y.2d 947), and we decline to review them in the interest of justice. In any event, if we were to review these claims, we would find that neither warrants corrective action. Defendant's hearing testimony making reference to a gun was inconsistent with his trial testimony and thus properly admitted for purposes of impeachment ( People v. Fardan, 82 N.Y.2d 638) with appropriate limiting instructions. Moreover, the evidence against defendant was overwhelming, rendering error, if any, in this regard harmless. As for prosecutorial misconduct, at no time was defendant asked to characterize the People's witnesses as "liars" or as "lying", but simply whether any testimony contrary to his own was not "true" ( People v. Butler, 185 A.D.2d 141), and, here too, any overzealousness on the part of the prosecutor was harmless in view of the overwhelming evidence of guilt. We perceive no abuse of sentencing discretion.
Concur — Sullivan, J.P., Rosenberger, Wallach, Ross and Tom, JJ.