People v. Hayes

309 A.D.2d 519, 764 N.Y.S.2d 699, 2003 N.Y. App. Div. LEXIS 9999

Opinion

Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered September 25, 2000, convicting defendant, after a jury trial, of robbery in the first degree (four counts), robbery in the second degree (two counts), and criminal possession of a weapon in the second and third degrees, and sentencing him, as a second felony offender, to an aggregate term of 15 years, unanimously affirmed.

Defendant’s arguments relating to jury selection are similar to arguments rejected by this Court on the codefendant’s appeal (People v Smith, 303 AD2d 206 [2003], lv denied 100 NY2d 543 [2003]), and there is no reason to reach a different result herein.

To the extent that some of the prosecutor’s summation remarks exceeded the limits of permissible comment, we find the error to be harmless in light of the overwhelming evidence of defendant’s guilt (see People v Crimmins, 36 NY2d 230 [1975]), as well as the court’s curative actions.

The court properly granted the prosecutor’s request for a missing witness charge concerning defendant’s half-brother. Defendant’s testimony established that the events involving the missing witness occurred close enough in time to the robbery so that the brother would have been in a position to provide material, noncumulative testimony (see People v Garcia, 250 AD2d 421 [1998], lv denied 92 NY2d 897 [1998]). Concur — Nardelli, J.P., Mazzarelli, Andrias, Saxe and Williams, JJ.