People v. McElveen

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Berkowitz, J.), rendered March 18, 1987, convicting him of manslaughter in the first degree, attempted manslaughter in the first degree, assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

We agree with the defendant’s contention that the prosecutor improperly elicited from Detective DeRosalia, over defense counsel’s objection, an out-of-court statement made to the detective by a witness who did not testify at the trial (see, People v Melendez, 55 NY2d 445, 452). Although defense counsel had previously elicited a portion of the statement during his cross-examination of the detective, the so-called "opening of the door” theory is not applicable where, as here, the remainder of the statement did not explain or clarify matters already put in issue by the cross-examination (see, People v Melendez, supra, at 451-452; People v Keeling, 141 AD2d 668, 669). Nevertheless, given the overwhelming proof of the defendant’s guilt, the admission of this testimony was harmless (see, People v Crimmins, 36 NY2d 230). Moreover, the testimony was cumulative as it was consistent with the testimony of the four eyewitnesses who testified for the prosecution.

We have considered the defendant’s remaining contentions and find them to be either unpreserved for appellate review or without merit. Bracken, J. P., Sullivan, Harwood and Rosenblatt, JJ., concur.