Opinion
June 25, 1998
Appeal from the Supreme Court, New York County (William Leibovitz, J.).
Defendant's contention that the prosecutor improperly cross examined defendant's witness about her failure to come forward to the police and prosecutor with exculpatory information is unpreserved for failure to advance the specific contentions raised for the first time on appeal (see, People v. Maschi, 49 N.Y.2d 784; People v. Jackson, 214 A.D.2d 475, lv denied 86 N.Y.2d 796; People v. Perez, 159 A.D.2d 219, 220, lv denied 76 N.Y.2d 740), and we decline to review it in the interest of justice. Were we to review it, we would find that the prosecutor laid a proper foundation for such inquiry (see, People v. Dawson, 50 N.Y.2d 311), and that it was sufficiently established that the witness's silence was not the product of advice by defense counsel (see, People v. Scarpelli, 137 A.D.2d 566, lv denied 71 N.Y.2d 973). The prosecutor never suggested or implied that the witness was under any duty to go to the police or the District Attorney; and the court, without objection, appropriately charged the jury to that effect, avoiding any possible prejudice. We conclude that defendant was not prejudiced by the absence of a bench conference prior to the Dawson inquiry.
Defendant's claim that the prosecutor's summation deprived him of a fair trial is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the prosecutor's argument was based upon legitimate inferences drawn from evidence in the record (see, People v. Mendez, 189 A.D.2d 651, lv denied 81 N.Y.2d 889), and was a fair response to arguments raised in the defense summation with respect to the credibility of the People's witnesses (People v. Galloway, 54 N.Y.2d 396).
Defendant's contention that he was denied a fair trial by the People's failure to produce a mug shot, requested by defendant during discovery, is meritless. Another sufficiently similar photograph of defendant, taken shortly after his arrest and before the mug shot, was received, at trial. In these circumstances, defendant was not entitled to an adverse inference charge.
Concur — Sullivan, J. P., Ellerin, Williams, Tom and Mazzarelli, JJ.