People v. Spinelli

Dec 28, 2010
Versions:79 A.D.3d 1152
913 N.Y.S.2d 582

The People of the State of New York, Respondent, v Anthony Spinelli, Appellant. [913 NYS2d 582]—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.) rendered September 17, 2008, convicting him of assault in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant‘s contention that the trial court erred in denying his request for a missing witness charge is unpreserved for appellate review since the specific arguments he now makes were not raised before the trial court (see CPL 470.05 [2]; People v Lopez, 19 AD3d 510, 511 [2005]). In any event, the contention is without merit, as the defendant failed to demonstrate that the testimony of the witness in question would have been favorable to the People (see People v Keen, 94 NY2d 533, 539 [2000]; People v Smith, 71 AD3d 1174, 1175 [2010]) or that the witness was under the People‘s control (see People v Jacobs, 65 AD3d 594, 596 [2009]). Moreover, the witness was equally available to both parties (see People v Clas, 54 AD3d 770, 771 [2008]).

The defendant‘s contention that various comments made by the prosecutor during summation were improper and deprived him of a fair trial is unpreserved for appellate review, as the defendant either did not object to the remarks at issue (see CPL 470.05 [2]), made only general one-word objections (see People v Salnave, 41 AD3d 872, 874 [2007]), or failed to seek curative instructions or a mistrial when the trial court sustained the objections (see People v Muniz, 44 AD3d 1074 [2007]; People v White, 5 AD3d 511 [2004]). In any event, the challenged portions of the prosecutor‘s summation constituted fair response to the defense summation, or fair comment on the evidence and the reasonable inferences to be drawn therefrom (see People v Amico, 78 AD3d 1190 [2010]; People v Kurney, 69 AD3d 957 [2010]; People v Bowman, 58 AD3d 747, 748 [2009]). Covello, J.P., Eng, Chambers and Hall, JJ., concur.