Opinion
March 2, 1987
Appeal from the Supreme Court, Kings County (Broomer, J.).
Ordered that the judgment is affirmed.
The codefendant, the defendant's 19-year-old wife, testified that the three complainants had initiated the confrontation with her and the defendant by trying to rob them of their portable radio. She further testified that one of these three complainants had pulled a gun and fired two shots as she and the defendant were attempting to flee the confrontation. One of the complainants did not testify at trial and the defense sought a missing witness charge. The court properly refused to so charge since the People's evidence showed that a sufficiently diligent effort had been made to locate the witness and the witness was not under the control of, or available to, the People (see, People v. McCullers, 119 A.D.2d 835; People v. Geoghegan, 68 A.D.2d 279, affd 51 N.Y.2d 45). Moreover, the testimony of the two police officers who apprehended the defendant and the codefendant corroborated the fact that the defendant was carrying the gun and accordingly there is no reason to believe that the testimony of the missing witness would have been adverse to the People's case (see, People v. Brown, 34 N.Y.2d 658; People v. Buckler, 39 N.Y.2d 895; People v. Almodovar, 62 N.Y.2d 126).
The defendant's remaining contention that the prosecutrix's summation remarks deprived him of the right to a fair trial is, in part, unpreserved for appellate review and, in any event, is without merit. The trial court sustained defense counsel's objection to the first remark and delivered immediate curative instructions, and the second remark was a fair comment on the evidence and on the summation of the defense counsel (see, People v. Galloway, 54 N.Y.2d 396; People v. Marks, 6 N.Y.2d 67, cert denied 362 U.S. 912; People v. Ayala, 120 A.D.2d 600). Mangano, J.P., Bracken, Brown and Spatt, JJ., concur.