Opinion
570157/05.
Decided April 18, 2006.
Defendant appeals from a judgment of the Criminal Court, New York County (Gerald Harris, J.), rendered May 28, 2003, after a jury trial, convicting him of assault in the third degree and imposing sentence.
Judgment of conviction (Gerald Harris, J.), rendered May 28, 2003, affirmed.
PRESENT: McCOOE, J.P., GANGEL-JACOB, SCHOENFELD, JJ
Defendant failed to preserve his challenges to the court's justification charge and supplemental instructions, and we decline to review them in the interest of justice. Were we to review these claims, we would find that the main charge as a whole conveyed the appropriate legal standards and clearly instructed the jury as to the People's burden of proof ( see People v. Daughtry, 298 AD2d 184, lv denied 99 NY2d 534). The supplemental charge was entirely proper given the specific information requested by the deliberating jury ( see People v. Almodovar, 62 NY2d 126).
The trial court properly denied defendant's request for a missing witness charge since the uncalled witness' testimony would have been cumulative to other evidence ( see People v. Gonzalez, 68 NY2d 424, 427).
Defendant's challenges to the People's summation are largely unpreserved for appellate review and we decline to review them in the interest of justice. Were we to review, we would find that the challenged remarks constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, made in response to defense arguments, and that the summation did not shift the burden of proof or deprive defendant of a fair trial ( see People v. Overlee, 236 AD2d 133, 136 [1st Dept 1997], lv denied 91 NY2d 976; People v. D'Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884).
This constitutes the decision and order of the court.