People v. Torres

220 A.D.2d 263, 632 N.Y.S.2d 85, 1995 N.Y. App. Div. LEXIS 10029

Opinion

—Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered September 1, 1992, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 4 to 12 years, unanimously affirmed.

Defendant’s claim that he was denied a fair trial by the questions and comments on his pretrial silence is unpreserved for appellate review as a matter of law for failure to object (CPL 470.05; People v Holland, 174 AD2d 508, 510, Iv denied 78 NY2d 1011), and we decline to review it in the interest of justice. Were we to review the claim, we would find that defendant’s failure to contact the police after learning that the victim had been shot in the altercation was proper rebuttal to defendant’s theory of self-defense (see, People v Kearse, 177 AD2d 392, Iv denied 79 NY2d 1003), especially in light of his subsequent trip to Florida, and that any error in this regard was in any event harmless in view of the overwhelming evidence of defendant’s guilt. Concur—Ellerin, J. P., Wallach, Ross, Asch and Mazzarelli, JJ.