Opinion
January 22, 1998
Appeal from the Supreme Court (Teresi, J.).
Initially, we reject defendant's contention that the People committed reversible error when, during summation, the prosecutor commented upon defendant's failure to produce a witness. Inasmuch as defendant testified on his own behalf, the People were entitled to bring to the jurors' attention defendant's failure to call a material witness who might be expected to testify favorably on his behalf (see, People v. Roundtree, 190 A.D.2d 879, 880). We also find no error in the People's limited reference to the definition of "serious physical injury" in order to give meaning to the facts referenced in the summation. Moreover, any error in this regard was obviated when Supreme Court instructed the jury that it must accept the law as given to it by the court. Finally, Supreme Court properly declined to charge assault in the third degree as a lesser included offense inasmuch as no fair view of the evidence would have supported such a finding (see, People v. Glover, 57 N.Y.2d 61, 63).
Mikoll, J.P., Mercure, Yesawich Jr. and Peters, JJ., concur.
Ordered that the judgment is affirmed.