Opinion
October 20, 1998
Appeal from the Supreme Court, New York County (Antonio Brandveen, J.).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Defendant did not preserve his current claims of error regarding alleged accomplice testimony and we decline to review them in the interest of justice. Were we to review these claims, we would reject them since there was no evidentiary showing that the witness in question was an accomplice ( see, People v. Young, 235 A.D.2d 441, 442-443, lv denied 89 N.Y.2d 1042). Relevant credibility factors in connection with this witness's testimony were presented to the jury, and we see no reason to disturb its findings.
Defendant did not preserve his current claims of error in connection with the prosecutor's summation comments and we decline to review them in the interest of justice. Were we to review the claims, we would find that the summation constituted fair comment on the evidence and appropriate response to the defense summations and did not deprive defendant of a fair trial ( see, People v. D'Alessandro, 184 A.D.2d 114, lv denied 81 N.Y.2d 884).
Defendant's application for a missing witness charge regarding the uncalled detectives was properly denied. In addition to the fact that the application was untimely made after both sides had rested ( People v. Gonzalez, 68 N.Y.2d 424, 428), the record indicates that testimony by the uncalled witnesses would have been cumulative ( People v. Ortiz, 83 N.Y.2d 989).
The existing record demonstrates that defendant received meaningful representation by trial counsel ( People v. Benevento, 91 N.Y.2d 708).
Since defendant refused to be interviewed by the Probation Department, he may not properly claim that the ensuing report was incomplete ( People v. Greene, 209 A.D.2d 541, lv denied 85 N.Y.2d 909). We perceive no abuse of discretion in sentencing.
Defendant's remaining claims are unpreserved and we decline to review them in the interest of justice. Were we to review them, we would reject them.
Concur — Nardelli, J. P., Wallach, Tom and Andrias, JJ.