People v. Slater , 636 N.Y.S.2d 611 ( 1995 )

—Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered November 10, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 41/2 to 9 years, unanimously affirmed.

Defendant’s arguments concerning the People’s rebuttal testimony are unpreserved for appellate review, no objection having been made to its admission (see, People v Acosta, 180 AD2d 505, 507-508, Iv denied 80 NY2d 827), and we decline to review them in the interest of Justice. If we were to review them, we would find that the rebuttal testimony was properly admitted, in the court’s discretion, to refute defendant’s testimony suggesting that he did not fit the description of the perpetrator (see, CPL 260.30 [7]; People v Harris, 57 NY2d 335, 345-346, cert denied 460 US 1047; People v Rojas, 200 AD2d 545, Iv denied 83 NY2d 857). Defendant’s claim that the court failed to respond to a jury note cannot be reviewed, on this direct appeal, in the absence of factual record which it was defendant’s burden to provide (see, People v Kinchen, 60 NY2d 772; People v Church, 217 AD2d 444, 445; People v Roman, 217 AD2d 494). Concur — Sullivan, J. P., Ellerin, Ross, Nardelli and Tom, JJ.