PEOPLE v. GARDNER (1997)

 Supreme Court did not err in permitting the People to introduce testimony of defendant from a prior trial as part of their case-in-chief.   The People were not required to satisfy the requirements of CPL 670.10.   The evidence included admissions by defendant and was independently admissible under that exception to the hearsay rule (see, People v. Rose, 224 A.D.2d 643, 639 N.Y.S.2d 413;  People v. Koestler, 176 A.D.2d 1207, 1208, 576 N.Y.S.2d 705;  People v. King, 158 A.D.2d 471, 550 N.Y.S.2d 921, lv. denied 76 N.Y.2d 737, 558 N.Y.S.2d 899, 557 N.E.2d 1195;  People v. Morton, 116 A.D.2d 925, 927, 498 N.Y.S.2d 874, lv. denied 67 N.Y.2d 887, 501 N.Y.S.2d 1039, 492 N.E.2d 1246).   Defendant did not object to the admission of the prior testimony on the ground that it was contaminated by a prior erroneous Sandoval ruling and thus did not preserve that issue for our review (see, CPL 470.05[2] ).   We decline to exercise our power to address that issue as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

 We agree with defendant that the prosecutor engaged in misconduct by forcing defendant to characterize the People's witnesses as liars (see, People v. Paul, 212 A.D.2d 1020, 1021, 623 N.Y.S.2d 50, lv. denied 85 N.Y.2d 912, 627 N.Y.S.2d 335, 650 N.E.2d 1337).   That misconduct was isolated, however, and not so egregious that defendant was thereby deprived of a fair trial (see, People v. Rubin, 101 A.D.2d 71, 77-78, 474 N.Y.S.2d 348).   While the prosecutor also engaged in misconduct by questioning defendant regarding his failure to produce certain evidence (see, People v. Grice, 100 A.D.2d 419, 422, 474 N.Y.S.2d 152), we conclude that the court's curative instruction, given at the prosecutor's request, cured any prejudicial effect (see, People v. Heck, 229 A.D.2d 931, 645 N.Y.S.2d 681;  People v. Plant, 138 A.D.2d 968, 526 N.Y.S.2d 300, lv. denied 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 59).   We reject the contention that the prosecutor improperly commented during summation on matters not in evidence, and we conclude that the prosecutor's comments concerning witness credibility were made in fair response to defense counsel's summation (see, People v. Rubin, supra, at 77-78, 474 N.Y.S.2d 348).

Judgment unanimously affirmed.

MEMORANDUM: