Summary
missing witness charge properly rejected because "witness had only a brief, casual friendship with the complainant and thus could not be expected to provide favorable testimony for the People"
Summary of this case from Rivera v. DuncanOpinion
October 21, 1999
Judgment, Supreme Court, New York County (Bruce Allen, J., at hearing; Charles Solomon, J., at jury trial and sentence), rendered February 14, 1996, convicting defendant of robbery in the first degree (4 counts) and robbery in the second degree (2 counts), and sentencing him, as a second violent felony offender, to four concurrent terms of 12 1/2 to 25 years concurrent with two concurrent terms of 7 1/2 to 15 years, unanimously affirmed.
Defendant's suppression motion was properly denied. The record supports the hearing court's finding that there was probable cause to arrest defendant. The description of the robbery suspect, while general, was sufficiently specific (see, People v. Ward, 182 A.D.2d 573 lv denied 81 N.Y.2d 849) given the surrounding circumstances. At the time of his arrest, defendant matched, the description, which included a particular type of jacket, and was in the company of the codefendant, who had been identified by both victims in a photo array (see, People v. Pena, 197 A.D.2d 426 lv denied 82 N.Y.2d 928). Furthermore, the arresting officer was aware that, since the robbery, one of the victims had seen defendant on numerous occasions in the neighborhood, always in the company of the codefendant. Moreover, defendant told the officer that the codefendant was his girlfriend and that he customarily accompanied her. Accordingly, there was probable cause to arrest defendant (see, Brinegar v. United States, 338 U.S. 160, 175).
The record fails to support defendant's claim that, during summation, the prosecutor improperly accused defendant of exploiting his presence at trial in order to tailor his testimony. The challenged remark, read in context, was a fair response to a specific argument raised in defendant's summation and could not have been interpreted by the jury as penalizing defendant for exercising his right to testify and to be present during other testimony (see, People v. Cobo, 245 A.D.2d 72, lv denied 91 N.Y.2d 1006). Defendant's remaining challenges to the prosecutor's summation, as well as his challenges to the prosecutor's cross-examination, are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged remarks and questions were proper (see, People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976)
Defendant's request for a missing witness charge was properly denied since he failed to make a prima facie showing of any of the requirements for such a charge (see, People v. Gonzalez, 68 N.Y.2d 424). We note specifically that the missing witness had only a brief, casual friendship with the complainant and thus could not be expected to provide favorable testimony for the People (People v. Justice, 202 A.D.2d 362, lv denied 83 N.Y.2d 1004).
We perceive no abuse of discretion in sentencing.
SULLIVAN, J.P., NARDELLI, TOM, MAZZARELLI, FRIEDMAN, JJ.