PEOPLE v. SZLEKOVICS (2005)

 Defendant appeals from a judgment convicting her upon a jury verdict of, inter alia, murder in the second degree (Penal Law § 125.25 [3] ) and kidnapping in the first degree (§ 135.25[3] ), and two counts each of burglary in the first degree (§ 140.30[2] ) and assault in the first degree (§ 120.10[1] ).   Defendant failed to preserve for our review her contention that County Court erred in directing her expert psychologist to prepare a writing for submission to the court (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Contrary to the further contention of defendant, the court properly allowed the prosecutor to cross-examine her with respect to statements she made to that expert psychologist.  “ ‘Trial courts are accorded wide discretion in making evidentiary rulings and, absent an abuse of discretion, those rulings should not be disturbed on appeal’ ” (People v. Whitlatch, 294 A.D.2d 909, 909, 742 N.Y.S.2d 752, lv. denied 98 N.Y.2d 703, 747 N.Y.S.2d 422, 776 N.E.2d 11, quoting People v. Carroll, 95 N.Y.2d 375, 385, 718 N.Y.S.2d 10, 740 N.E.2d 1084).  “ Once a defendant voluntarily takes the stand, he [or she] has an obligation to testify truthfully” (People v. McGrath, 46 N.Y.2d 12, 21, 412 N.Y.S.2d 801, 385 N.E.2d 541, cert. denied 440 U.S. 972, 99 S.Ct. 1535, 59 L.Ed.2d 788).   Thus, even where the statements of a defendant are privileged or otherwise precluded by CPL 60.55, the defendant may open the door to the use of such statements for impeachment purposes when his or her testimony conflicts with such statements (see People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 628 N.E.2d 41).

Contrary to the further contention of defendant, she was not deprived of her right to a fair trial on the ground that the prosecutor's theories advanced at her trial and that of her codefendant allegedly were irreconcilably inconsistent.   The Court of Appeals previously rejected the identical contention of the codefendant on his appeal (People v. Mateo, 2 N.Y.3d 383, 401-404, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Here, as in Mateo, “the prosecutor's actions did not breach defendant's right to a fair trial” (id. at 398, 779 N.Y.S.2d 399, 811 N.E.2d 1053).

We have reviewed defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: