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1
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OPINION
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EXTRACTED KEY WORDS
MEMORANDUM AFFIRMANCE RESPONDENT ALIBI WITNESS TESTIMONY SUMMATION JUDGE ABUSE DISCRETION PERMITTING CROSS-EXAMINATION ADMITTING REBUTTAL TESTIMONY REBUTTAL TESTIMONY REFUTING DEFENDANT IMPROPER CONDONE FAILURE CHARGE THOMAS NY2D REVIEW SUBMISSIONS PURSUANT CHIEF JUDGE KAYE JUDGES SMITH LEVINE CIPARICK WESLEY ROSENBLATT GRAFFEO CONCUR |
1 No. 114 SSM 4
The People &c.,
Respondent,
v.
Anonymous,
Appellant.
_________________________________________________________________
2001 NY Int. 62
June 5, 2001
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by Daniel A. Warshawsky, for appellant.
Submitted by Deborah L. Morse, for respondent.
_________________________________________________________________
_________________________________________________________________
MEMORANDUM:
The order of the Appellate Division should be affirmed. The motivation
of defendant's main alibi witness to fabricate testimony was not
collateral and, therefore, Supreme Court did not abuse its discretion
in permitting cross-examination of the witness or in admitting
rebuttal testimony refuting the alibi witness's claims. We note the
point raised by defendant as to the prosecutor's improper comments
during the summation, but are unable to reach it. We do not condone
the summation and base our affirmance solely on defendant's failure to
preserve the issue. Defendant's remaining argument regarding the
court's charge is likewise unpreserved (People v Thomas, , 50 NY2d
467, 471-472).
On review of submissions pursuant to section 500.4 of the Rules, order
affirmed, in a memorandum. Chief Judge Kaye and Judges Smith, Levine,
Ciparick, Wesley, Rosenblatt and Graffeo concur.
Decided June 5, 2001
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