Opinion
February 24, 1986
Appeal from the County Court, Suffolk County (Mallon, J.).
Judgment affirmed.
The charges against defendant arose out of an incident on either April 4 or 5, 1983, in which defendant and three other men allegedly tied a 15-year-old girl to a bed and raped and sexually abused her. The testimony of the complaining witness showed that defendant not only raped her but also inserted a pool cue into her vagina. Defendant did not testify but did call three alibi witnesses who testified that he spent the evenings of April 4 and April 5 with his fiancee and various other friends. The evidence adduced at trial was sufficient to prove guilt beyond a reasonable doubt (see, People v. Foster, 64 N.Y.2d 1144, cert denied ___ US ___, 106 S Ct 166).
Defendant contends that he was deprived of a fair trial by the prosecutor's cross-examination of his alibi witnesses concerning their failure to disclose the exculpatory information to an investigator from the District Attorney's office who contacted them. Since this cross-examination was not objected to at trial, defendant has failed to preserve the issue for appellate review (see, People v. Mandel, 48 N.Y.2d 952, cert denied 446 U.S. 949). In any event, the cross-examination was proper since the prosecutor established that the witnesses were aware of the charges against defendant, had reason to recognize that they possessed exculpatory information, had a reasonable motive for acting to exonerate the defendant, and were familiar with the means to make the information available to law enforcement authorities (see, People v. Dawson, 50 N.Y.2d 311). No error was committed by the court in not charging the jury that the witnesses had no obligation to come forward with exculpatory information since such a charge was never requested (see, People v. Dawson, supra). While we agree with defendant that the notice of alibi should not have been admitted into evidence, this was harmless error.
We find no abuse of discretion in the trial court's ruling which precluded cross-examination of the complaining witness concerning her sexual conduct. Since defendant never raised the issue of consent, the prejudicial effect of such testimony would clearly outweigh its probative value (see, CPL 60.42; People v. Rockwell, 97 A.D.2d 853; People v. Barlow, 88 A.D.2d 668). It was also a proper exercise of discretion to deny defendant's application to preclude cross-examination concerning his prior conviction for attempted robbery (see, People v Duffy, 36 N.Y.2d 258, cert denied 423 U.S. 861; People v Sandoval, 34 N.Y.2d 371). Since attempted robbery is a crime involving dishonesty, it was material to defendant's credibility and not so similar to the crimes charged as to be unduly prejudicial (cf. People v. Mackey, 49 N.Y.2d 274).
We also find no error in the court's refusal to permit the complaining witness to be recalled to the stand to be cross-examined concerning a tape-recorded conversation which was discovered late in the trial in that: (1) there was no mention of defendant on the tape, (2) there was no indication as to what events were being discussed, and (3) defendant had previously had an extended opportunity to impeach the credibility of the complaining witness (see, People v. Schwartzman, 24 N.Y.2d 241, cert denied 396 U.S. 846).
We further hold that the prosecutor's remarks during summation were proper comments on the evidence and did not improperly allude to defendant's failure to testify (see, People v Roberts, 103 A.D.2d 975, affd 64 N.Y.2d 854; People v. Baldo, 107 A.D.2d 751), and that the time period designated in the indictment was sufficiently specific (see, People v. Morris, 61 N.Y.2d 290). Lazer, J.P., Mangano, Bracken and Niehoff, JJ., concur.