People v. Kelly

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robinson, J.), rendered October 28, 1993, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant has failed to preserve for appellate review his contention that the People were improperly allowed to use Grand Jury testimony to rebut his claim that the testimony of one of the People’s witnesses was recently fabricated (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245). In any event, this contention is without merit. On direct examination, the People’s witness, an undercover police officer, testified that he did not know the defendant. On cross-examination, the defendant attempted to show, through the use of portions of the officer’s Grand Jury testimony, that the officer’s trial testimony was a recent fabrication. The People were properly permitted to use additional questions and answers from the officer’s Grand Jury testimony to clarify the officer’s trial testimony and to rebut the defendant’s claim that the officer’s testimony was a recent fabrication (see, People v McDaniel, 81 NY2d 10; People v Torre, 42 NY2d 1036). Mangano, P. J., Joy, Hart and Florio, JJ., concur.