Opinion
June 4, 1996
Appeal from the Supreme Court, New York County, Juanita Bing Newton, J., Edward McLaughlin, J.
Neither the prosecutor's cross-examination of defendant nor the prosecutor's summation deprived defendant of a fair trial. Since the questioning of defendant concerning his purported statements to a fellow inmate did not concern any prior uncharged criminal, vicious or immoral conduct, but rather related to the crimes of which he was presently charged, the failure of the prosecutor to disclose the inmate's information to the defense did not violate CPL 240.43 or the court's Sandoval ruling. Moreover, the scope of cross-examination lies within the sound discretion of the Trial Judge ( People v. Schwartzman, 24 N.Y.2d 241, 244, cert denied 396 U.S. 846) and, where, as here, a proper foundation has been laid, and there exists a good faith basis for the prosecutor's cross-examination, defendant is properly impeached by a demonstration that, on other occasions, he made statements inconsistent with some material part of his trial testimony ( People v. Wise, 46 N.Y.2d 321, 326-327), even though the person to whom he purportedly made the statements did not testify at trial ( see, People v. Urena, 183 A.D.2d 673, lv denied 81 N.Y.2d 848). Such questioning did not make the prosecutor an unsworn witness ( see, People v. Roman, 217 A.D.2d 473, affd 88 N.Y.2d 18). The summation constituted a proper response to the summation of defense counsel and a fair comment on the evidence ( see, People v. Galloway, 54 N.Y.2d 396).
The court properly permitted the introduction of testimony concerning prior descriptions made by the complainant of his assailant; this identification testimony did not constitute improper bolstering nor inadmissible hearsay ( People v. Huertas, 75 N.Y.2d 487). Defendant failed to preserve his contention that the court erred in failing to provide a limiting instruction and we decline to review it in the interest of justice.
Concur — Sullivan, J.P., Ellerin, Ross, Nardelli and Tom, JJ.