People v. Smith

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered November 9, 2000, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Contrary to the defendant’s contention, the Supreme Court correctly admitted into evidence, as an excited utterance, the audiotape recording of an anonymous eyewitness’s initial 911 telephone call to the police (see People v Brown, 70 NY2d 513 [1987]; People v Edwards, 47 NY2d 493 [1979]; People v Prashad, 297 AD2d 352 [2002]; see also People v Buie, 86 NY2d 501 [1995]). The defendant’s arguments regarding alleged prosecutorial misconduct during summation are largely unpreserved for appellate review (see CPL 470.05 [2]). In any event, the comments alleged to be inflammatory and prejudicial were all either fair comment on the evidence (see People v Ashwal, 39 NY2d 105 [1976]), responsive to arguments and theories presented in the defense counsel’s summation (see People v Galloway, 54 NY2d 396 [1981]), or harmless in light of the overwhelming evidence of the defendant’s guilt (see People v Crimmins, 36 NY2d 230 [1975]). [772] The defendant’s remaining contentions are without merit. Krausman, J.P., Townes, Crane and Mastro, JJ., concur.