Opinion
March 21, 2001.
Appeal from Judgment of Erie County Court, DiTullio, J. — Rape, 1st Degree.
Before: BEFORE: PINE, J. P., WISNER, HURLBUTT, SCUDDER AND KEHOE, JJ.
Judgment unanimously affirmed. Memorandum:
Defendant was convicted following a jury trial of rape in the first degree (Penal Law § 130.35) and sexual abuse in the first degree (Penal Law § 130.65) in connection with an incident involving a former girlfriend. Defendant did not preserve for our review his contentions with respect to the testimony of the examining physician ( see, CPL 470.05), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).
Defendant further contends that he was denied a fair trial by alleged prosecutorial misconduct. We conclude that, although the prosecutor engaged in misconduct in seeking to impeach defendant by questioning him on cross-examination concerning his failure to support an out-of-wedlock child who was "on welfare" ( see, Gutierrez v. City of New York, 205 A.D.2d 425, 427), that misconduct did not deny defendant a fair trial ( see, People v. Caleb, 273 A.D.2d 881, 881-882, lv. denied 95 N.Y.2d 864). The other alleged instances of prosecutorial misconduct are not preserved for our review ( see, CPL 470.05), and we decline to exercise our power to review them as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).
Contrary to defendant's further contention, the verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). The victim's testimony was not incredible as a matter of law ( see, People v. Bell, 234 A.D.2d 915, 915-916, lv. denied 89 N.Y.2d 1009), and the conflicting testimony raised issues of credibility for the jury to resolve ( see, People v. Lopez, 231 A.D.2d 934, 935).