PEOPLE v. HERRERA (2005)

Appeal by the defendant from a judgment of the County Court, Nassau County (Calabrese, J.), rendered October 29, 2003, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the County Court correctly admitted the prior consistent statement of a witness since, on cross-examination, defense counsel inferentially assailed the witness testimony as a recent fabrication (see People v. McClean, 69 N.Y.2d 426, 428, 515 N.Y.S.2d 428, 508 N.E.2d 140;  People v. Whitley, 14 A.D.3d 403, 788 N.Y.S.2d 94;  People v. King, 293 A.D.2d 759, 760, 741 N.Y.S.2d 442;  People v. Sing Yuen Chen, 253 A.D.2d 898, 899, 680 N.Y.S.2d 98;  People v. Yarbough, 229 A.D.2d 605, 605-606, 646 N.Y.S.2d 353).   The defendant also contends that the court violated his right to a fair trial and his right to confront the witness when it precluded him from cross-examining the witness with respect to certain tape recorded statements.   However, the defendant failed to preserve this contention for appellate review because he did not make an objection on these specific grounds (see CPL 470.05[2];  People v. Qualls, 55 N.Y.2d 733, 734, 447 N.Y.S.2d 149, 431 N.E.2d 634;  People v. McNeil, 228 A.D.2d 620, 621, 645 N.Y.S.2d 37;  People v. Valle, 173 A.D.2d 879, 880, 571 N.Y.S.2d 82).   In any event, this contention is without merit.   The County Court allowed the audiotape to be played to the jury during the defendant's case and gave the defendant an opportunity to recall the witness for cross-examination with respect to the statements he made on the tape.   Accordingly, the defendant was not denied his right to a fair trial, nor was he denied his right to confront the witness.

 The defendant's contention that he was penalized for going to trial rather than accepting a plea offer is unpreserved for appellate review, as it was not raised before the County Court (see CPL 470.05[2];  People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017;  People v. Mack, 293 A.D.2d 761, 762, 741 N.Y.S.2d 444;  People v. Shorter, 275 A.D.2d 253, 254, 711 N.Y.S.2d 431).   In any event, this contention is without merit.   The court relied upon the appropriate factors in sentencing the defendant to a higher sentence than that which was offered during plea negotiations (see People v. Pena, 50 N.Y.2d 400, 411-412, 429 N.Y.S.2d 410, 406 N.E.2d 1347;  People v. Mack, supra ).

The defendant's remaining contentions either are unpreserved for appellate review or without merit.