Opinion
April 23, 1993
Appeal from the Supreme Court, New York County (Richard Andrias, J.).
Defendant's argument that the jury should have been instructed that the witness who testified in exchange for immunity was an accomplice is unpreserved for appellate review, as a matter of law, such a charge never having been requested by defendant (People v Navares, 162 A.D.2d 422, 424, lv denied 76 N.Y.2d 942). Were we to review in the interest of justice we would find that there was no evidence that Johnson was an accomplice. We further note that the evidence of defendant's guilt was overwhelming. Also unpreserved is defendant's argument that the prosecutor's summation improperly referred to the "safe-streets" argument and "lowered" the People's burden of proof by commenting on the concept of reasonable doubt. In any event, the record shows that the summation was a fair response to comments made by defense counsel in his summation, and did not exceed the broad bounds of rhetorical comment permissible in closing argument. It was not error to admit the detective's testimony concerning the procedures preceding the lineups in which defendant participated in view of defense counsel's cross examination of the witnesses concerning their lineup and photographic identifications of defendant (see, People v Gilley, 91 A.D.2d 1073). Nor was it error to deny defendant's request to call a police witness at the suppression hearing, supported as it was only by defendant's conjecture that the proposed witness would have raised an issue as to whether defendant was read his Miranda warnings or voluntarily answered questions (see, People v Chipp, 75 N.Y.2d 327, 337-338, cert denied 498 U.S. 833).
Concur — Carro, J.P., Wallach, Asch and Rubin, JJ.