People v. Smith

—Judgment, Supreme Court, New York County (Richard Andrias, J., on motions; Carol Berkman, J., at hearing, jury trial, and sentence), entered October 10, 1996, convicting defendant of murder in the second degree and criminal use of a firearm in the first degree, and sentencing him to concurrent terms of 25 years to life and 12V2 to 25 years, unanimously affirmed.

Summary denial of the Mapp/Dunaway branch of defendant’s suppression motion was proper because of the insufficiency of defendant’s factual allegations. The hearing record supports the court’s finding that the identification evidence was lawful. Defendant was granted a Huntley hearing; however, defendant clearly opened the door to introduction to one of the statements suppressed after the hearing. The court properly struck defendant’s testimony after he refused to answer questions on cross-examination. The challenged portions of the court’s charge were not objectionable. The challenged portions of the People’s summation constituted fair comment on the evidence and were responsive to defendant’s summation.

Each of defendant’s remaining claims, including his ineffective assistance claim, is either unreviewable as resting on matters dehors the record, or is unpreserved, or both, and we decline to review them in the. interest of justice. Were we to review these claims, we would find them to be without merit. Concur — Nardelli, J. P., Tom, Mazzarelli and Buckley, JJ.