People v. Balakitsis

— Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered April 12, 1990 convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a predicate felony offender, to a prison term of 6 to 12 years, unanimously affirmed. There is no merit to defendant’s argument that he was deprived of a fair trial by the complainant’s unsolicited remark during cross-examination that "defendant said he was guilty”, since the remark was not the functional equivalent of informing the jury that defendant had withdrawn a guilty plea to the same charge for which he was on trial (see, People v Martinez, 164 AD2d 826, lv denied 76 NY2d 1022). Moreover, the court’s curative instruction was appropriate and did not serve to focus the jury’s attention on the remark. Defendant’s other point on appeal, that the trial court violated CPL 60.25 in allowing a police officer to testify that the complainant had selected defendant in a lineup, is not preserved for appellate review as a matter of law. In any event, were we to consider this argument in the interest of justice, we would find any error harmless in view of the overwhelming evidence identifying defendant as the perpetrator, including the complainant’s testimony concerning the length of time and unobstructed conditions under which he observed defendant during the robbery, and the complainant’s recovery of a wallet near the robbery scene containing defendant’s driver’s license and other personal documents (see, People v Burgess, 66 AD2d 667). Concur — Sullivan, J. P., Milonas, Rosenberger, Ross and Kassal, JJ.