| People v Spinelli |
| 2010 NY Slip Op 09947 [79 AD3d 1152] |
| December 28, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Spinelli, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Danielle S. Fenn of counsel), for respondent.
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 criminalpossession 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 missingwitness charge is unpreserved for appellate review since the specific arguments he now makeswere not raised before the trial court (see CPL 470.05 [2]; People v Lopez, 19AD3d 510, 511 [2005]). In any event, the contention is without merit, as the defendant failed todemonstrate that the testimony of the witness in question would have been favorable to thePeople (see People v Keen, 94 NY2d 533, 539 [2000]; People v Smith, 71 AD3d1174, 1175 [2010]) or that the witness was under the People's control (see People vJacobs, 65 AD3d 594, 596 [2009]). Moreover, the witness was equally available to bothparties (see People v Clas, 54 AD3d 770, 771 [2008]).
The defendant's contention that various comments made by the prosecutor during summationwere improper and deprived him of a fair trial is unpreserved for appellate review, as thedefendant either did not object to the remarks at issue (see CPL 470.05 [2]), made onlygeneral one-word objections (see People v Salnave, 41 AD3d 872, 874 [2007]), or failedto seek curative instructions or a mistrial when the trial court sustained the objections (seePeople v Muniz, 44 AD3d 1074 [2007]; People v White, 5 AD3d 511 [2004]). In anyevent, the challenged portions of the prosecutor's summation constituted fair response to thedefense summation, or fair comment on the evidence and the reasonable inferences to be drawntherefrom (see People v Amico, 78 AD3d 1190 [2010]; People v Kurney, 69AD3d 957 [2010]; People v Bowman, 58 AD3d 747, 748 [2009]). Covello, J.P., Eng,Chambers and Hall, JJ., concur.