Opinion
September 20, 1994
Appeal from the Supreme Court, New York County (Alfred Kleiman, J.).
Defendant's request for a missing witness charge in connection with one of the complainants, which was made after both sides had rested and long after the prosecution had indicated that it would not be calling this out-of-State complainant as a witness, was untimely (People v. Kaplan, 199 A.D.2d 82). In any event defendant failed to demonstrate that such complainant's testimony would have been noncumulative (see, People v. Williams, 162 A.D.2d 309, lv denied 76 N.Y.2d 945). Defendant's claim of ineffective assistance of trial counsel is not supported by a record adequately explaining counsel's strategic choices as might have been developed had an appropriate post-judgment motion been made, and, upon a review of the record presented we cannot conclude that defendant was denied meaningful representation (see, People v. Jones, 55 N.Y.2d 771; People v. Perez, 159 A.D.2d 219, lv denied 76 N.Y.2d 740). Finally, while we agree with defendant that the trial court did on some occasions overstep the bounds of appropriate judicial commentary, many of the challenged comments were made out of the presence of the jury, and the remaining comments and the questioning of witnesses by the court, were harmless if not proper. We have reviewed defendant's remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Carro, Nardelli, Williams and Tom, JJ.