People v. Cole

5 A.D.3d 177, 772 N.Y.S.2d 518

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 2004
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered May 21, 2002, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.

Defendant’s claim that the prosecutor improperly cross-examined him about an omission from his postarrest written statement is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that this cross-examination was proper because defendant had acknowledged that his written exculpatory statement was a complete account of the incident, so that his failure to mention the omitted exculpatory information at that time was an unnatural omission (see People v Savage, 50 NY2d 673 [1980], cert denied 449 US 1016 [1980]; People v Montalvo, 285 AD2d 384 [2001], lv denied 96 NY2d 941 [2001]; compare People v Bornholdt, 33 NY2d 75, 88 [1973], cert denied sub nom. Victory v New York, 416 US 905 [1974]). Concur—Andrias, J.P., Saxe, Sullivan and Gonzalez, JJ.