Opinion
June 27, 1988
Appeal from the Supreme Court, Kings County (Marrus, J.).
Ordered that the judgment is affirmed.
In this case in which the defendant was charged with raping and sodomizing his 13-year-old stepdaughter on three separate occasions the defendant contends that the trial court erred in admitting evidence of a prior Family Court proceeding. The record reveals, however, that he acquiesced in the curative instructions given by the court. As a consequence, the issue is not preserved for appellate review (see, People v Medina, 53 N.Y.2d 951, 953; People v Corley, 140 A.D.2d 536; People v Jalah, 107 A.D.2d 762). In any event, we conclude that the instruction had the intended curative effect (see, People v Arce, 42 N.Y.2d 179).
The purported impropriety of permitting the prosecutor to elicit evidence of past attacks by the defendant on his wife was, likewise, unpreserved for appellate review. In any case, we conclude that this evidence was probative of the victim's state of mind and relevant to prove that the defendant used forcible compulsion (see, People v Barlow, 88 A.D.2d 668, 669). The testimony rebutting the defendant's alibi elicited by the prosecution was also properly admissible. The testimony related to an error in the defense witness's testimony, which involved a material issue in the case (i.e., the whereabouts of the defendant on the day of one of the alleged rapes); it was therefore not collateral (see, People v Schwartzman, 24 N.Y.2d 241; People v Green, 121 A.D.2d 739, lv denied 68 N.Y.2d 813).
Finally, the defendant failed to properly object at trial to the prosecutor's opening and closing statements and thus failed to preserve the issue of the propriety of those statements for review (see, People v Balls, 69 N.Y.2d 641, 642). In any event, since defense counsel in summation directly questioned the complainant's veracity, the prosecutor's comments were not unreasonable (see, People v Colon, 122 A.D.2d 151, lv denied 68 N.Y.2d 810). Moreover, the prosecutor's characterization of the crimes in question did not deprive the defendant of a fair trial given the overwhelming proof of defendant's guilt (see, People v Galloway, 54 N.Y.2d 396; People v Roopchand, 107 A.D.2d 35, affd 65 N.Y.2d 837). Brown, J.P., Kunzeman, Rubin and Kooper, JJ., concur.