Opinion
May 9, 1988
Appeal from the Supreme Court, Kings County (Quinones, J.).
Ordered that the judgment is affirmed.
The trial court did not abuse its discretion by permitting into evidence (1) photographs of the victim taken just after she was attacked, evidencing that she sustained a brutal beating and (2) a ripped and bloodied nightgown alleged to have been worn by the victim during the attack. This evidence tended to prove material issues in the case and was corroborative of the testimony given at trial (see, People v Pobliner, 32 N.Y.2d 356, 369-370, cert denied 416 U.S. 905; People v Baez, 131 A.D.2d 687; People v Shade, 127 A.D.2d 862, lv denied 69 N.Y.2d 1009; People v Scott, 126 A.D.2d 582, 583, lv denied 69 N.Y.2d 1009).
The prosecutor improperly presented an argument in her summation, without a proper foundation, concerning the defendant's failure to call witnesses to corroborate his testimony (see, People v Woodson, 73 A.D.2d 862; cf., People v Rodriguez, 38 N.Y.2d 95; People v Paylor, 121 A.D.2d 891, 892, affd 70 N.Y.2d 146). However, in light of the fact that the trial court did curtail the prosecutor's statements and the overwhelming nature of the evidence against the defendant, the error was harmless and did not deprive the defendant of a fair trial (see, People v Crimmins, 36 N.Y.2d 230). Bracken, J.P., Lawrence, Kunzeman and Harwood, JJ., concur.