| People v Mamadou |
| 2015 NY Slip Op 05210 [129 AD3d 993] |
| June 17, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Barry Mamadou, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Benjamin S. Litman of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A.Grob, and Jean M. Joyce of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Shillingford, J.), rendered February 28, 2013, convicting him of robbery in the firstdegree, robbery in the second degree, criminal possession of a weapon in the seconddegree (two counts), criminal possession of a weapon in the third degree, and criminalpossession of stolen property in the fourth degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The trial court providently exercised its discretion in denying the defendant's requestfor a missing witness charge with respect to a cab driver who picked up the complainantmoments after the complainant's car was stolen. The defendant failed to show that thecab driver was knowledgeable about a material issue, since the cab driver did not arriveat the scene until after the defendant drove away in the stolen car (see People v Lopez, 19 AD3d510, 512 [2005]; People v Rivera, 174 AD2d 581, 582 [1991]). Moreover,the defendant failed to show that the cab driver was under the People's control (seePeople v Gonzalez, 68 NY2d 424, 428-429 [1986]; People v Abelson, 27 AD3d301, 301 [2006]).
The defendant's arguments regarding the prosecutor's alleged improper commentsduring summation are unpreserved for appellate review, since the comments were notobjected to, were the subject of unspecified, general objections, were not objected to in atimely manner, or were not the subject of a mistrial motion or a request for furthercurative instructions after an objection was sustained (see CPL 470.05 [2]; People v Romero, 7 NY3d911, 912 [2006]; People vSingh, 109 AD3d 1010, 1013 [2013]). In any event, most of the challengedremarks were within the broad bounds of permissible rhetorical comment, a fair responseto the defendant's summation, or fair comment on the evidence and the reasonableinferences to be drawn therefrom (see People v Halm, 81 NY2d 819, 821 [1993];People v Galloway, 54 NY2d 396, 399 [1981]; People v Ashwal, 39NY2d 105, 109-110 [1976]; People v Williams, 123 AD3d 1152, 1152 [2014]). To theextent that any remaining challenged remarks were improper, they were "not so flagrantor pervasive as to deprive the defendant of a fair trial" (People v Ward, 106 AD3d842, 843 [2013]; see Peoplev Thompson, 125 AD3d 899 [2015]; People v Almonte, 23 AD3d 392, 394 [2005]). Skelos, J.P.,Leventhal, Austin and Miller, JJ., concur.