People v. Williams , 787 N.Y.S.2d 770 ( 2004 )

Appeal from a judgment of the Supreme Court, Erie County (Russell R Buscaglia, A.J.), rendered March 6, 2002. The judgment convicted defendant, upon a jury verdict, of criminal mischief in the third degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum:

On appeal from a judgment convicting him upon a jury verdict of two counts of criminal mischief in the third degree (Penal Law former § 145.05), defendant contends that Supreme Court erred in denying his request for a missing witness charge. We reject that contention. A request for a missing witness charge is properly denied where, as here, the party requesting the charge does not establish that the witness could have been expected to testify concerning a material issue (see generally People v Macana, 84 NY2d 173, 177 [1994]). We also reject the contention of defendant that he was denied a fair trial by prosecutorial misconduct. The comments of the prosecutor in her closing concerning a brick allegedly used in the commission of the crime constituted fair commentary (see People v Anderson, 274 AD2d 974 [2000], lv denied 95 NY2d 863 [2000]). The prosecutor’s comments regarding “clothes-switching” by defendant were conclusions fairly inferable from the evidence (cf. People v Ashwal, 39 NY2d 105, 110 [1976]). Any prejudice resulting from the other statements of the prosecutor to which defendant raised objections was alleviated by curative instructions (see People v Carter, 280 AD2d 977, 977-978 [2001], lv denied 96 NY2d 860 [2001]). We decline to exercise our power to review the unpreserved instances of alleged misconduct as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

We conclude that the court properly denied defendant’s motion to suppress the identification testimony of two witnesses. The circumstances involving the respective showup identifications by the witnesses were not unduly suggestive (see People v Smith, 289 AD2d 1056, 1057 [2001], lv denied 98 NY2d 641 [2002]), and, moreover, the identifications occurred in “close geographic and temporal proximity to the crime” (People v Ortiz, 90 NY2d 533, 537 [1997]). We further conclude that the court properly denied the motion of defendant to suppress a statement and responsive gesture made by him to law enforcement officials. In denying defendant’s motion, the court credited the testimony of a police officer and a peace officer. Such credibility determinations will not be disturbed where, as here, they are not “clearly erroneous” (People v Evans, 278 AD2d 937, 937 [2000], lv denied 96 NY2d 783 [2001] [internal quotation marks omitted]; see generally People v Prochilo, 41 NY2d 759, 761 [1977]). Present—Green, J.P., Pine, Hurlbutt, Martoche and Smith, JJ.