People v. Miller

213 A.D.2d 271, 624 N.Y.S.2d 27, 1995 N.Y. App. Div. LEXIS 2967

Opinion

—Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered February 9, 1993, convicting defendant, after a jury trial, of burglary in the third degree and criminal possession of stolen property in the fifth degree, and sentencing him, as a second felony offender, to concurrent terms of SV2 to 7 years and 1 year, respectively, unanimously affirmed.

The trial court properly denied defendant’s request for permission to comment on the People’s failure to call a witness to the crime since it was made after both sides had rested and was, therefore, untimely (People v Alamo, 202 AD2d 349, lv denied 84 NY2d 822; People v Kaplan, 199 AD2d 82). Defendant failed to establish that the witness was available and that his testimony would have been material and noncumulative, thus, the court properly precluded defense counsel from such comment (People v Henry, 197 AD2d 383, lv denied 83 NY2d 853).

Since defense counsel did not object to the charge provided, defendant’s current objection has not been preserved for this Court’s review (People v DeMatteis, 186 AD2d 460, 461, lv denied 81 NY2d 969; People v Taik Kwung, 186 AD2d 365, lv denied 81 NY2d 766). Were we to consider the argument in the interest of justice, we would nonetheless affirm since despite its instruction on the "two-inference charge”, the court repeatedly instructed the jury on the proper standard of proof (supra). Concur—Sullivan, J. P., Wallach, Asch, Nardelli and Williams, JJ.