People v. Edwards

3 A.D.3d 504, 771 N.Y.S.2d 145

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 2004
• Status: Published

Opinions

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered October 24, 2000, convicting him of attempted murder in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The Supreme Court providently exercised its discretion in denying the defendant’s request for a continuance in order to permit him to present the testimony of a witness, since the defendant did not show that the proposed witness would present testimony material to the case (see People v Singleton, 41 NY2d 402 [1977]; People v Foy, 32 NY2d 473, 476 [1973]; People v Drummond, 233 AD2d 339 [1996]). The defendant wanted to secure the testimony of a Sergeant Quinn who, according to the testimony of Police Officer Johnson, was probably the officer who inspected the crime scene and noted that no blood was observed on the subway platform where the stabbing occurred. This testimony allegedly would raise doubts about the victim’s credibility with respect to where the stabbing occurred. However, there is nothing in the record to support the premise that there should have been noticeable amounts of blood on the subway platform under the circumstances, as the victim was wearing a down jacket and a sweater that could have absorbed much of the blood. Further, the victim testified that right after he was stabbed the defendant pushed him off the platform and onto the tracks. In addition, the 911 call made to the police reporting a stabbing originated from a- point just outside the station entrance, providing corroboration for the victim’s testimony that the attack occurred in the subway station.

The defendant testified in his own behalf. The gist of his testimony was that he was elsewhere at the time the crime was committed, entitling him to an alibi charge (see People v Holt, 67 NY2d 819, 821 [1986]). The trial court’s refusal to give such an instruction, however, does not require reversal where the charge as a whole conveyed the necessary information regarding the People’s burden of proof (see People v Warren, 76 NY2d 773, 775-776 [1990]; People v McFarlane, 187 AD2d 734 [1992]). The charge given here left no doubt that the People had the burden of proving, beyond a reasonable doubt, both that the defendant stabbed the victim at the crime scene and that he was not elsewhere at the same time (see People v Warren, supra at 775). In this case, if the jury found, beyond a reasonable doubt, that the defendant was at the crime scene and stabbed the victim there, as the victim testified, it had to have rejected the defendant’s alibi (see People v Hayes, 191 AD2d 368, 370 [1993]).

The defendant’s arguments regarding alleged prosecutorial misconduct during summation are unpreserved for appellate review (see CPL 470.05 [2]; People v Dien, 77 NY2d 885 [1991]; People v Nuccie, 57 NY2d 818 [1982]). In any event, the comments alleged to be inflammatory and prejudicial constituted either fair comment on the evidence (see People v Ashwal, 39 NY2d 105 [1976]) or were responsive to arguments presented in the defense counsel’s summation (see People v Galloway, 54 NY2d 396 [1981]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are without merit. Adams, Townes and Mastro, JJ., concur.