Opinion
December 7, 1987
Appeal from the Supreme Court, Kings County (Feldman, J.).
Ordered that the judgment is affirmed.
The defendant's right to a fair trial was not compromised by the trial court's ruling that the complainant would be permitted to testify as to the statement the defendant made to her as he approached with screwdriver in hand, i.e., that "he wanted to give me something and that he had just recently * * * raped a girl before [and] that he would kill me if I didn't shut up and stop screaming". The evidence was probative of the "forcible compulsion" element of rape in the first degree (Penal Law § 130.35; § 130.00 [8]) and was thus admissible, notwithstanding the potential for prejudice (see, People v Santarelli, 49 N.Y.2d 241, rearg denied 49 N.Y.2d 918; People v Vails, 43 N.Y.2d 364; People v Barlow, 88 A.D.2d 668). This was particularly so in light of the defendant's argument at trial that the intercourse was consensual, thus expressly disputing that it was accomplished by forcible compulsion. The defendant's claims that the court improperly failed to redact the statement or to issue a limiting instruction (see, People v Ventimiglia, 52 N.Y.2d 350; People v Bolling, 120 A.D.2d 601, lv denied 68 N.Y.2d 665) are unpreserved for appellate review (see, People v Thomas, 50 N.Y.2d 467). In any event, any error in failing to redact the statement or in not giving a limiting instruction was harmless in light of the overwhelming evidence of the defendant's guilt independent of the challenged statement (see, People v Crimmins, 36 N.Y.2d 230).
We have considered the defendant's remaining contentions and find them to be without merit. Bracken, J.P., Brown, Weinstein and Spatt, JJ., concur.