People v. Oakley

114 A.D.2d 473, 494 N.Y.S.2d 383, 1985 N.Y. App. Div. LEXIS 53168

Opinion

—Appeal by defendant from a judgment of the Supreme Court, Kings County (Fuchs, J.), rendered March 11, 1983, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

Since defendant did not object to any of the comments made by the prosecutor at the trial, no error of law was preserved for appellate review (see, People v Medina, 53 NY2d 951). In any event, there was not such misconduct as to deny defendant a fair trial. The remark concerning the witness’s lack of motivation to lie was a proper comment on his credibility, which was at issue on the trial (see, People v Ashwal, 39 NY2d 105). Nor was it improper to tell the jury that the prosecutor did not know the whereabouts of a potential witness since several times in his summation defense counsel had referred to the failure to call her (see, People v Marks, 6 NY2d 67, cert denied 362 US 912). The other comments were not so prejudicial as to cause the trial to be unfair, especially in light of the overwhelming evidence against defendant (cf. People v Galloway, 54 NY2d 396). Bracken, J. P., Weinstein, Kunzeman and Kooper, JJ., concur.