Opinion
November 12, 1999
Appeal from Judgment of Supreme Court, Erie County, Rossetti, J. — Criminal Possession Weapon, 2nd Degree.
PRESENT: PINE, J. P., LAWTON, HAYES, WISNER AND SCUDDER, JJ.
Judgment unanimously affirmed. Memorandum: We reject the contention of defendant that his conviction is against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). We likewise reject defendant's contention that Supreme Court erred in refusing to give a missing witness charge. The testimony of those witnesses would have been cumulative (see, People v. Gonzalez, 68 N.Y.2d 424, 428; People v. Cooper, 197 A.D.2d 861, lv denied 82 N.Y.2d 892; People v. Nelson, 186 A.D.2d 1068, lv denied 81 N.Y.2d 764). In any event, any error in the court's failure to give that charge is harmless (see, People v. Crimmins, 36 N.Y.2d 230, 241-242). Defendant failed to preserve for our review his contention that the court erred in permitting the People to present rebuttal testimony (see, CPL 470.05; People v. Paterson, 227 A.D.2d 348, lv denied 88 N.Y.2d 991; People v. Marshall, 221 A.D.2d 476; People v. Cavallo, 167 A.D.2d 884, lv denied 77 N.Y.2d 876), and we decline to consider it as a matter of discretion in the interest of justice (see, CPL 470.15 [a]). Also unpreserved for our review are defendant's contentions regarding misconduct by the prosecutor in her opening statement and summation (see, CPL 470.05; People v. Balls, 69 N.Y.2d 641, 642; People v. Eldridge, 221 A.D.2d 966, 966-967, lv denied 87 N.Y.2d 1019). In any event, the alleged misconduct was not so egregious as to deprive defendant of a fair trial (see, People v. Pritchett, 248 A.D.2d 967, lv denied 92 N.Y.2d 929; People v. Rubin, 101 A.D.2d 71, 77, lv denied 63 N.Y.2d 711). We have reviewed defendant's remaining contention and conclude that it is without merit.