Opinion
February 2, 1993
Appeal from the Supreme Court, New York County (Alfred Kleiman, J.).
Contrary to defendant's contention, a missing witness charge is not a necessary predicate to comment on the failure of a party to produce relevant evidence (People v Zillinger, 179 A.D.2d 382). The prosecutor's use of rhetorical questions to note the absence of a central figure in the defense case did not assign an obligation to defendant to produce the witness. Moreover, any possible prejudice or confusion was alleviated by the court's instructions (People v Hagi, 169 A.D.2d 203, 216).
The court's charge on the use of deadly physical force was proper since the defendant's use of the razor clearly demonstrated the use of deadly physical force rather than simply physical force.
Concur — Carro, J.P., Milonas, Rosenberger, Ellerin and Kupferman, JJ.