PEOPLE v. RODRIGUEZ (2006)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered July 23, 2001, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that he was deprived of his right to confront witnesses against him is unpreserved for appellate review (see CPL 470.05 [2];  People v. Gray, 86 N.Y.2d 10, 20, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Cato, 22 A.D.3d 863, 802 N.Y.S.2d 753, lv. denied 6 N.Y.3d 774, 811 N.Y.S.2d 341, 844 N.E.2d 796).   In any event, the prosecution was properly permitted to question Detective Kevin Smith about the knowledge he derived from other persons for the non-hearsay purpose of rebutting the defense argument that the detective had fabricated portions of the defendant's second written statement (see Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425;  People v. Reynoso, 309 A.D.2d 769, 770-771, 765 N.Y.S.2d 54, affd. 2 N.Y.3d 820, 781 N.Y.S.2d 284, 814 N.E.2d 456;  People v. Rodriguez, 210 A.D.2d 266, 620 N.Y.S.2d 68), and further, as the defense had already opened the door to the prosecutor's inquiry (see People v. Massie, 2 N.Y.3d 179, 183-184, 777 N.Y.S.2d 794, 809 N.E.2d 1102;  People v. Summers, 20 A.D.3d 546, 799 N.Y.S.2d 534;  People v. Reynoso, supra at 770, 765 N.Y.S.2d 54;  People v. Kourani, 256 A.D.2d 620, 622, 683 N.Y.S.2d 570).

The defendant's contention that the prosecutor's comments on summation constituted reversible error is unpreserved for appellate review (see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370;  People v. Tevaha, 84 N.Y.2d 879, 881, 620 N.Y.S.2d 786, 644 N.E.2d 1342;  People v. Hudgins, 20 A.D.3d 489, 490, 797 N.Y.S.2d 760, lv. denied 5 N.Y.3d 853, 806 N.Y.S.2d 173, 840 N.E.2d 142).   In any event, although certain of the prosecutor's comments were improper (see People v. Shanis, 36 N.Y.2d 697, 699, 366 N.Y.S.2d 413, 325 N.E.2d 873;  People v. Smith, 288 A.D.2d 496, 497, 733 N.Y.S.2d 237), the errors were harmless in light of the overwhelming evidence of the defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Hudgins, supra at 490, 797 N.Y.S.2d 760;  People v. Richardson, 294 A.D.2d 379, 742 N.Y.S.2d 645).