Opinion
2933.
Decided February 24, 2004.
Judgment, Supreme Court, New York County (John Bradley, J.), rendered September 10, 2001, convicting defendant, after a jury trial, of burglary in the second degree and criminal mischief in the fourth degree, and sentencing him, as a second violent felony offender, to concurrent terms of 7 years and 1 year, respectively, unanimously affirmed.
Zachary H. Johnson, for Respondent.
Jonathan M. Kirshbaum, for Defendant-Appellant.
Before: Buckley, P.J., Nardelli, Sullivan, Lerner, JJ.
Defendant's request for a missing witness instruction was properly denied. The witness, a security employee for the hospital at which the crime occurred, played a peripheral role in defendant's arrest and the court correctly concluded that he could not provide material, noncumulative testimony ( see People v. Gonzalez, 68 N.Y.2d 424). In any event, were we to find any error in the denial of the requested charge, we would find it harmless in view of the overwhelming evidence of defendant's guilt.
Defendant's challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged remarks generally constituted fair comment on the evidence and were responsive to defense counsel's summation ( see People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).
Defendant's challenge to his adjudication as a second violent felony offender is unpreserved, and we decline to review it in the interest of justice. Were we to review the claim, we would find it unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.