People v. BramblePeople v. Bramble
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Ordered that the judgment is affirmed.
The defendant‘s contention that the Supreme Court erroneously admitted, at trial, evidence of his change in hairstyle is unpreserved for appellate review (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, the Supreme Court providently exercised its discretion in admitting this evidence as proof that the defendant was conscious of his own guilt (see People v Reade, 13 NY2d 42, 46 [1963]; People v Torres, 179 AD2d 696, 696-697 [1992]).
Contrary to the defendant‘s contention, there was a sufficient factual predicate to support a jury instruction on consciousness of guilt (see People v Robinson, 10 AD3d 696 [2004]). The defendant‘s contention that the Supreme Court erred in the actual wording of the jury instruction is unpreserved for appellate review (see People v Wady, 220 AD2d 631 [1995]) and, in any event, is without merit (see People v Solimini, 69 AD3d 657, 658 [2010]).
The defendant‘s contention that he was deprived of a fair trial by the prosecutor‘s reference to a nontestifying witness in his opening statement is similarly unpreserved for appellate review (see People v Seabrooks, 244 AD2d 514 [1997]). In any event, while the People failed to present witnesses to whom they referred in their opening statement, “the general rule is that, absent bad faith or undue prejudice, a trial will not be undone” (People v De Tore, 34 NY2d 199, 207 [1974], cert denied 419 US 1025 [1974]; see People v Pierre, 35 AD3d 893 [2006]).
The defendant‘s contention that he was deprived of his Sixth Amendment right to confront witnesses by the testimony of a detective, referring to a missing witness, is also unpreserved for appellate review (see People v Walker, 70 AD3d 870, 871 [2010]). In any event, the People never attempted to introduce any out-of-court statement made by the missing witness for its truth (see generally People v Huertas, 75 NY2d 487, 491-492 [1990]). Thus, the People violated neither the hearsay rule nor the defendant‘s Sixth Amendment right to confront witnesses (cf. People v Blake, 242 AD2d 728 [1997]).
The defendant was not deprived of the effective assistance of counsel, as defense counsel provided meaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).
The defendant‘s remaining contentions are without merit.
Rivera, J.P., Leventhal, Sgroi and Miller, JJ., concur.