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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Abdoulaye TRAORE, Defendant-Appellant.

Decided: November 17, 2005

TOM, J.P., MARLOW, ELLERIN, SWEENY, CATTERSON, JJ. Laura R. Johnson, The Legal Aid Society, New York (Jonathan Garelick of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Richard L. Sullivan of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered January 7, 2004, convicting defendant, after a jury trial, of three counts of rape in the third degree and three counts of sodomy in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 2 to 4 years, unanimously affirmed.

During his cross-examination of the victim, defendant opened the door to evidence of defendant's explanation to the victim as to why he had not attended her party (see People v. Torre, 42 N.Y.2d 1036, 399 N.Y.S.2d 203, 369 N.E.2d 759 [1977] ).   The explanation, that he had been driving with friends and had been “stopped,” did not constitute evidence of an uncharged crime (see People v. Flores, 210 A.D.2d 1, 618 N.Y.S.2d 815 [1994], lv. denied 84 N.Y.2d 1031, 623 N.Y.S.2d 187, 647 N.E.2d 459 [1995] ).   Moreover, the nature of the explanation was relevant to a credibility issue that defendant developed during cross-examination.

To the extent that a portion of an officer's testimony concerning his investigation of the crime could be viewed as lay opinion on the victim's credibility, we find the error to be harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).

The challenged portions of the People's summation constituted fair comment on the evidence (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).   Defendant placed the victim's credibility at issue throughout the trial, including defendant's summation, and the People's responsive arguments did not constitute vouching and were not inflammatory (People v. Gonzalez, 298 A.D.2d 133, 747 N.Y.S.2d 761 [2002], lv. denied 99 N.Y.2d 614, 757 N.Y.S.2d 825, 787 N.E.2d 1171 [2003] ).