Although we find that the People's use of defendant's alibi notice was contrary to People v. Burgos-Santos ( 98 N.Y.2d 226, 233-235), we find the error to be harmless in light of the overwhelming evidence of defendant's guilt, including eyewitness testimony and circumstantial evidence ( see id. at 235-236). To the extent that defendant is raising a constitutional claim, such claim is unpreserved ( see id. at 235), and we decline to review it in the interest of justice. In any event, any error in the use of the alibi notice was harmless even under the constitutional standard.
The court properly allowed defense counsel to comment on the prosecutor's failure to call particular witnesses, and properly precluded counsel from inviting unwarranted speculation ( see People v. Greene, 279 A.D.2d 436, lv denied 96 N.Y.2d 800).
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.