People v. O'Dell

Appeal by defendant from a judgment of the County Court, Dutchess County (Aldrich, J.), rendered April 23,1982, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

Defendant’s guilt was proven beyond a reasonable doubt (see, People v Contes, 60 NY2d 620 , 621). There was ample evidence from which the jury could infer that defendant intended to kill the victim based upon his conduct on the night in question (see, People v Barnes, 50 NY2d 375 ; People v Mackey, 49 NY2d 274 ).

Since no objection was taken by defense counsel to the court’s charge on intent, any error in that charge has not been preserved for appellate review as a matter of law (People v Glinsman, 107 AD2d 710 ; People v Mandrachio, 79 AD2d 278 , affd 55 NY2d 906 , cert denied 457 US 1122 ).

The court properly exercised its discretion in allowing the prosecutor to introduce, on rebuttal, a sworn statement made by one of the People’s witnesses in order to negate her testimony on cross-examination which had raised a possible justification defense not previously mentioned during direct examination. Even if such proof was not actually of a rebuttal nature, the trial court could have nevertheless permitted its introduction in the interest of justice (CPL 260.30 [7]; People v Harris, 57 NY2d 335 , 345, cert denied 460 US 1047 ; People v Sterling, 95 AD2d 927 , 928). Mangano, J. P., Bracken, Rubin and Kunzeman, JJ., concur.