Opinion
November 6, 1989
Appeal from the Supreme Court, Queens County (Appelman, J.).
Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (5).
The defendant contends that the trial court's admission of certain testimony deprived him of a fair trial. Specifically, Police Officer Michael Dempsey of the Queens Robbery Unit testified that he had shown the victim approximately 2,000 photographs from police photograph books which did not contain a picture of the defendant. The victim had previously testified on cross-examination, in response to the defense counsel's question of whether he understood the importance of giving the police an accurate description of the perpetrator of the crime, that he had viewed photographs exhibited by the police. He replied negatively to a further question posed by the defense counsel as to whether he recognized any of the photographed individuals. By failing to move to strike the victim's initial unresponsive answer and compounding the problem by pursuing this line of questioning, the defense counsel opened the door for the prosecutor to elicit testimony to clarify and explain that issue (see, People v Bolden, 58 N.Y.2d 741; see also, People v Almonte, 135 A.D.2d 824; People v Smith, 133 A.D.2d 863). The defendant's reliance upon People v Zanfordino ( 78 A.D.2d 558) and People v Rothaar ( 75 A.D.2d 652) is misplaced. In both of those cases the so-called negative identification testimony was elicited in the first instance on the People's direct case.
The defendant further charges that the trial court erred in permitting the testimony of Police Officer William Crescenzo that he arrested the defendant following a conversation with the victim and that the victim had pointed out the defendant to the police. Although this testimony may be construed as implicit or inferential bolstering in violation of the rule of People v Holt ( 67 N.Y.2d 819; cf., People v Trowbridge, 305 N.Y. 471), in the context of this case, in which the conviction stands upon the clear and strong identification testimony of the victim and another witness, the error was harmless (see, People v Johnson, 57 N.Y.2d 969; see also, People v Holt, 67 N.Y.2d 819, supra).
Lastly, the defendant contends he was deprived of a fair trial as a result of improper remarks made by the prosecutor in her summation. However, for the most part, the defense counsel failed to object to the purportedly improper remarks. Therefore, any issue of law with respect to the alleged errors has not been preserved for appellate review (CPL 470.05; People v Dordal, 55 N.Y.2d 954, 956), and we decline to review these alleged errors in the interest of justice. Where an objection was interposed, prompt curative instructions were issued and the trial court cautioned the prosecutor to refrain from further improper comment. The defense counsel did not request any further curative instructions or move for a mistrial. Thus, any issue of law with respect to this alleged error was also not preserved for appellate review (see, People v Medina, 53 N.Y.2d 951). Mangano, J.P., Thompson, Bracken and Rosenblatt, JJ., concur.