People v. Spratley , 656 N.Y.S.2d 33 ( 1997 )

Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.), rendered March 10, 1995, convicting him of assault in the first degree (two counts), attempted robbery in the first degree (two counts), attempted robbery in the second degree, criminal use of a firearm in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s current claim that the People’s summation improperly drew attention to the fact that he did not testify is not preserved for appellate review. The defendant’s objection to the prosecutor’s comment during summation that it was "uncontroverted” that the complainant was accosted by three would-be robbers had a totally different basis (see, CPL 470.05 [2]; People v Luperon, 85 NY2d 71, 78; People v Mingey, 190 NY 61). In any event, the statement was not improper as the defendant was not the only person who could have contradicted the evidence (see, People v Maimone, 9 AD2d 780, affd 7 NY2d 998, cert denied sub nom. Akel v New York, 364 US 827), and therefore, an adverse inference concerning his failure to testify was not an inevitable conclusion to be drawn from it (see, People v Gilmore, 152 AD2d 743; People v Garcia, 51 AD2d 329, affd 41 NY2d 861). Moreover, the People’s comment was a fair response to the defendant’s attack on the credibility of the complainant and the co-perpetrator (see, People v Gilmore, 106 AD2d 399, 401; People v Gibbs, 207 AD2d 739). Sullivan, J. P., Santucci, Friedmann and McGinity, JJ., concur.