Opinion
KA 02-00626.
December 30, 2004.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered March 6, 2002. The judgment convicted defendant, upon a jury verdict, of criminal mischief in the third degree (two counts).
Before: Green, J.P., Pine, Hurlbutt, Martoche and Smith, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of two counts of criminal mischief in the third degree (Penal Law former § 145.05), defendant contends that Supreme Court erred in denying his request for a missing witness charge. We reject that contention. A request for a missing witness charge is properly denied where, as here, the party requesting the charge does not establish that the witness could have been expected to testify concerning a material issue ( see generally People v. Macana, 84 NY2d 173, 177). We also reject the contention of defendant that he was denied a fair trial by prosecutorial misconduct. The comments of the prosecutor in her closing concerning a brick allegedly used in the commission of the crime constituted fair commentary ( see People v. Anderson, 274 AD2d 974, lv denied 95 NY2d 863). The prosecutor's comments regarding "clothes-switching" by defendant were conclusions fairly inferable from the evidence ( cf. People v. Ashwal, 39 NY2d 105, 110). Any prejudice resulting from the other statements of the prosecutor to which defendant raised objections was alleviated by curative instructions ( see People v. Carter, 280 AD2d 977, 977-978, lv denied 96 NY2d 860). We decline to exercise our power to review the unpreserved instances of alleged misconduct as a matter of discretion in the interest of justice ( see CPL 470.15 [a]).
We conclude that the court properly denied defendant's motion to suppress the identification testimony of two witnesses. The circumstances involving the respective showup identifications by the witnesses were not unduly suggestive ( see People v. Smith, 289 AD2d 1056, 1057, lv denied 98 NY2d 641), and, moreover, the identifications occurred in "close geographic and temporal proximity to the crime" ( People v. Ortiz, 90 NY2d 533, 537). We further conclude that the court properly denied the motion of defendant to suppress a statement and responsive gesture made by him to law enforcement officials. In denying defendant's motion, the court credited the testimony of a police officer and a peace officer. Such credibility determinations will not be disturbed where, as here, they are not "clearly erroneous" ( People v. Evans, 278 AD2d 937, 937, lv denied 96 NY2d 783 [internal quotation marks omitted]; see generally People v. Prochilo, 41 NY2d 759, 761).