Opinion
May 9, 2000.
Judgment, Supreme Court, Bronx County (John Stackhouse, J.), rendered November 8, 1996, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him to a term of 4 to 12 years, unanimously affirmed.
Heather Kenney, for Respondent.
Joseph M. Nursey, for Defendant-Appellant.
ROSENBERGER, J.P., MAZZARELLI, ELLERIN, RUBIN, FRIEDMAN, JJ.
The court properly precluded defendant from commenting in summation upon the People's failure to call a civilian witness, since defendant failed to make the limited showing required for such a comment. The witness was clearly unavailable and there was no indication that he could provide material testimony.
The court properly exercised its discretion in denying defendant's mistrial motion. The court's prompt and strong curative action prevented the challenged portion of the People's summation from having any prejudicial effect.
We perceive no abuse of sentencing discretion.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.