Opinion
998
May 1, 2003.
Judgment, Supreme Court, New York County (Charles Tejada, J.), rendered January 16, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a hypodermic instrument, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years and 1 year, respectively, unanimously affirmed.
Karen Schlossberg, for respondent.
William A. Loeb, for defendant-appellant.
Before: Tom, J.P., Andrias, Sullivan, Rosenberger, Friedman, JJ.
The court properly precluded defendant from commenting in summation on the fact that the People had not called the drug purchaser in this observation sale as a witness. We note initially that defendant abandoned this issue (see People v. Graves, 85 N.Y.2d 1024, 1027). In any event, although a summation comment on witness's absence does not require the same foundation as a missing witness charge, there was no basis for such a comment here since the witness was clearly unavailable, there was no evidence that the testimony would be anything but cumulative, and there was no showing that the witness should naturally be expected to testify favorably to the People (see People v. Tankleff, 84 N.Y.2d 992, 994-995; People v. Torres, 272 A.D.2d 128, lv denied 95 N.Y.2d 939; People v. Jenkins, 226 A.D.2d 116, lv denied 88 N.Y.2d 937).
Defendant's challenge to background testimony about the roles of various participants in a street-level drug operation, is unpreserved, as counsel's unelaborated "objection" was insufficient to alert the trial court to the arguments he makes on appeal (People v. Tevaha, 84 N.Y.2d 879, 881), and we decline to review it in the interest of justice. Were we to review this claim, we would we would find that this brief and limited testimony was properly admitted (see People v. Brown, 97 N.Y.2d 500, 506-507).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.