Opinion
November 9, 1995
Appeal from the Supreme Court, New York County (Alvin Schlesinger, J.).
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 A.D.2d 717, lv denied 84 N.Y.2d 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 A.D.2d 383, lv denied 83 N.Y.2d 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 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).
Concur — Rosenberger, J.P., Rubin, Kupferman and Williams, JJ.