People v. Davis , 128 A.D.2d 800 ( 1987 )

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Alfano, J.), rendered July 7, 1982, convicting him of attempted robbery in the first degree, attempted robbery in the second degree (two counts), assault in the second degree (two counts), and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s argument that his exculpatory statement made to the arresting officer after his arrest should have been admitted during the cross-exmaination testimony of that officer, is without merit. The defendant did not argue before the Trial Judge, nor does he argue on appeal, that this hearsay testimony falls within any exception to the hearsay rule (see, People v Sostre, 51 NY2d 958; see also, People v Dvoroznak, 127 AD2d 785).

While it was improper for the prosecutor to comment on the defendant’s failure to call certain alibi witnesses, since there is nothing in the record to indicate that they were under the defendant’s control or available to him (see, People v De Jesus, 42 NY2d 519, 525; People v Shaw, 112 AD2d 958), the error was rendered harmless when the Trial Judge sustained the defense counsel’s objections and gave a prompt curative instruction telling the jury to disregard the comments, and when, during its charge, the court instructed the jury that the People bore the burden of proof, which burden never shifted, and that the defendant had no burden to clear himself.

We have considered the defendant’s other contentions and find them to be without merit. Brown, J. P., Lawrence, Eiber and Sullivan, JJ., concur. [See, 114 Misc 2d 791.]