PEOPLE v. NARINE (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrero, J.), rendered November 25, 1997, convicting him of attempted robbery in the first degree (two counts), assault in the first degree, and attempted grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's argument that the prosecutor committed reversible error when he cross-examined the defendant about his failure to call 911 is unpreserved for appellate review (see, CPL 470.05[2];  People v. Persaud, 237 A.D.2d 538, 656 N.Y.S.2d 34).   In any event, the defense counsel opened the door to this issue, thereby allowing the prosecutor to ask questions on the subject (see, People v. Chaitin, 61 N.Y.2d 683, 472 N.Y.S.2d 597, 460 N.E.2d 1082).   Moreover, the questions were a proper vehicle by which the prosecutor could cast doubt upon the veracity of the defendant's exculpatory statements at trial (see, People v. Dawson, 50 N.Y.2d 311, 316-317, 428 N.Y.S.2d 914, 406 N.E.2d 771).

The defendant's contention that the trial court, in imposing sentence, improperly considered his protestations of innocence after conviction, is unpreserved for appellate review (see, People v. Hurley, 75 N.Y.2d 887, 554 N.Y.S.2d 469, 553 N.E.2d 1017).   In any event, the court properly imposed sentence based on the defendant's prior record.

The defendant's remaining contentions are also unpreserved for appellate review, and in any event, are without merit.

MEMORANDUM BY THE COURT.