People v. Ramirez

221 A.D.2d 178, 633 N.Y.S.2d 155, 1995 N.Y. App. Div. LEXIS 11529

Opinion

—Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered June 2, 1993, convicting defendant, after a jury trial, of robbery in the first degree and grand larceny in the fourth degree, and sentencing him, as a second violent felony offender, to concurrent terms of 7½ to 15 years and 2 to 4 years, respectively, unanimously affirmed.

Defendant’s request for a missing witness charge, made after both sides had rested and long after the prosecution had stated that it did not intend to call the witness in question, was properly denied as untimely (People v Efremashvili, 207 AD2d 717, Iv denied 84 NY2d 934). Further, comment by defendant on the People’s failure to call the witness was properly precluded for failure to make any showing that the witness was either available to the People or that his testimony would be noncumulative (People v Henry, 197 AD2d 383, lv denied 83 NY2d 853). Defendant’s claim of prosecutorial misconduct during summation is largely unpreserved, and, in any event, there was no obdurate pattern of inflammatory remarks that deprived defendant of a fair trial (see, People v D’Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884). Concur— Rosenberger, J. P., Rubin, Kupferman and Williams, JJ.