Opinion
February 5, 1993
Appeal from the Erie County Court, D'Amico, J.
Present — Callahan, J.P., Green, Lawton, Boehm and Doerr, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's contention that a prosecution witness' testimony, that complainant told her that she had been raped and threatened with death if she told anyone, improperly bolstered the testimony of the complainant and deprived defendant of a fair trial. Defendant failed to object to that testimony as improper bolstering. Thus, the issue has not been preserved for appellate review (see, People v Love, 57 N.Y.2d 1023, 1025; People v West, 56 N.Y.2d 662, 663; People v Marks, 182 A.D.2d 1122; People v Minigan, 175 A.D.2d 648, lv denied 78 N.Y.2d 1013). Were we to address the issue on the merits, we would conclude that the error was harmless in light of the victim's strong and unequivocal identification of defendant and the overwhelming evidence of guilt (see, People v Johnson, 57 N.Y.2d 969; People v Marks, supra; People v Williams, 154 A.D.2d 935, lv denied 75 N.Y.2d 778). In our view, there is no significant probability that the jury would have acquitted defendant had it not been for the disputed testimony (see, People v Crimmins, 36 N.Y.2d 230, 242; People v Marks, supra).
There is no merit to defendant's argument that the prosecutor's delay in delivering Rosario material (see, People v Rosario, 9 N.Y.2d 286, rearg denied 9 N.Y.2d 908, cert denied 368 U.S. 866, rearg denied 14 N.Y.2d 876, 15 N.Y.2d 765) deprived him of a fair trial. The statement in question was not part of the People's direct case, but rather was rebuttal evidence. CPL 240.45 (1) does not require the prosecutor to anticipate the defenses that may be raised (People v Ross, 147 A.D.2d 954, lv denied 73 N.Y.2d 1021).
In view of the heinous nature of the offenses, the sentencing court did not abuse its discretion in imposing the maximum permissible sentence.