Opinion
March 21, 1995
Appeal from the Supreme Court, New York County (Franklin Weissberg, J.).
The trial court properly denied defendant's request for permission to comment on the People's failure to call a witness to the crime since it was made after both sides had rested and was, therefore, untimely (People v. Alamo, 202 A.D.2d 349, lv denied 84 N.Y.2d 822; People v. Kaplan, 199 A.D.2d 82). Defendant failed to establish that the witness was available and that his testimony would have been material and noncumulative, thus, the court properly precluded defense counsel from such comment (People v. Henry, 197 A.D.2d 383, lv denied 83 N.Y.2d 853).
Since defense counsel did not object to the charge provided, defendant's current objection has not been preserved for this Court's review (People v. DeMatteis, 186 A.D.2d 460, 461, lv denied 81 N.Y.2d 969; People v. Taik Kwung, 186 A.D.2d 365, lv denied 81 N.Y.2d 766). Were we to consider the argument in the interest of justice, we would nonetheless affirm since despite its instruction on the "two-inference charge", the court repeatedly instructed the jury on the proper standard of proof (supra).
Concur — Sullivan, J.P., Wallach, Asch, Nardelli and Williams, JJ.