| People v Miles |
| 2018 NY Slip Op 00519 [157 AD3d 641] |
| January 30, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Chris Miles, Appellant. |
Rosemary Herbert, Office of the Appellate Defender, New York (Joseph M. Nursey ofcounsel), and Weil, Gotshal & Manges LLP, New York (David Fitzmaurice of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Cynthia A. Carlson of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (George R. Villegas, J.), rendered October 29,2014, convicting defendant, after a jury trial, of murder in the second degree, and sentencing himto a term of 25 years to life, unanimously affirmed.
By failing to object, making general objections or failing to request any further relief after thecourt sustained an objection, defendant failed to preserve his present challenges to theprosecutor's summation (see People vRomero, 7 NY3d 911, 912 [2006]). "The word 'objection' alone [is] insufficient topreserve [an] issue" for review as a question of law (People v Tevaha, 84 NY2d 879, 881[1994]), and defendant's assertion to the contrary is unavailing. We decline to review thesechallenges in the interest of justice. As an alternative holding, we conclude that while some ofthe challenged remarks should have been avoided, they were not so egregious or pervasive as tohave deprived defendant of a fair trial (see People v Overlee, 236 AD2d 133 [1st Dept1997], lv denied 91 NY2d 976 [1992]; People v D'Alessandro, 184 AD2d 114,118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]). In particular, when viewed incontext, the prosecutor's brief, ill-conceived reference to an appeal following a conviction wasnot unduly prejudicial.
We also conclude that defendant was not deprived of a fair trial by the prosecutor's referencein his opening statement to a witness who ultimately did not testify. Defendant has notestablished either bad faith on the People's part or undue prejudice (see People v De Tore,34 NY2d 199, 207 [1974], cert denied 419 US 1025 [1974]). Furthermore, defendantabandoned his request for a curative instruction, and only requested the drastic remedy of amistrial.
The court properly excluded the testimony of defendant's toxicologist, because he could notprovide any competent evidence bearing on the credibility of a People's witness whom thedefense claimed to have been intoxicated at the time of the incident (see generally People vDavis, 43 NY2d 17, 27 [1977], cert denied 438 US 914 [1978]). Defendant's theoryof admissibility was excessively speculative and tenuous. Concur—Friedman, J.P.,Gische, Mazzarelli, Kern, Singh, JJ.