Opinion
February 6, 1996
Appeal from the Supreme Court, Bronx County (Ira Globerman, J.).
Defendant claims that the People's failure to call the identifying witness at the Rodriguez hearing deprived him of his right of confrontation; and that the police officers' hearsay testimony concerning what the witness told them about her familiarity with defendant was insufficient to establish that the identification was confirmatory, are unpreserved for appellate review as a matter of law (CPL 470.05; see, People v Iannelli, 69 N.Y.2d 684), and we decline to review them in the interest of justice ( see, People v. Campbell, 187 A.D.2d 442, lv denied 81 N.Y.2d 837). Nevertheless, were we to review these claims, we would find them to be without merit ( People v. Won, 208 A.D.2d 393, lv denied 84 N.Y.2d 1040) as hearsay evidence is admissible at suppression hearings (CPL 710.60; People v Campbell, supra, at 443).
Also unpreserved for our review are defendant's claims that the trial court's instructions were an inadequate response to the prejudice caused by the complainant's testimony concerning defendant's selling of drugs, a crime with which he was not charged ( People v. Santiago, 52 N.Y.2d 865; People v. Stokes, 214 A.D.2d 326, lv denied 86 N.Y.2d 741); and that the prosecutor's arguments in summation based on such drug sales were improper ( People v. Balls, 69 N.Y.2d 641), and we decline to review them in the interest of justice.
Were we to review these claims, we would find that the court's limiting instructions, given during the complainant's testimony and again during the jury charge, were adequate to alleviate any prejudice to the defendant ( People v. Johnson, 216 A.D.2d 583, lv denied 86 N.Y.2d 796). Further, evidence concerning those sales was properly admitted to establish that defendant's motive for stabbing the complainant was to punish him for not turning over money owed for previous drug sales ( People v. Alvino, 71 N.Y.2d 233, 241-242; People v. Brooks, 210 A.D.2d 148, lv denied 84 N.Y.2d 1029). We would also find that the prosecutor's comments, which merely restated certain facts set forth during the complainant's testimony, were proper ( People v. Ashwal, 39 N.Y.2d 105).
Lastly viewing the evidence in the light most favorable to the People ( People v. Contes, 60 N.Y.2d 620, 621), it was sufficiently established that defendant and his three cohorts, with the intent to commit a crime therein, tricked the complainant's girlfriend, the identifying witness, into opening the door of the apartment and pushed their way in ( People v. Barnes, 50 N.Y.2d 375; People v. Anderson, 103 A.D.2d 1011), and, once in the apartment, to cause physical injury to the complainant by attacking him ( People v Jennings, 188 A.D.2d 552).
We perceive no abuse of discretion in the sentences imposed.
Concur — Murphy, P.J., Rosenberger, Rubin, Tom, and Mazzarelli, JJ.