PEOPLE v. FREGOSI (1999)

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered June 9, 1997, convicting defendant, after a jury trial, of two counts of murder in the second degree, and sentencing him to consecutive terms of 25 years to life, unanimously affirmed.

 Defendant's suppression motion was properly denied.   The record, including evidence of explicit written permission to search, supports the hearing court's conclusion that defendant's brother's consent to search the apartment they shared was voluntary (People v. Gonzalez, 39 N.Y.2d 122, 383 N.Y.S.2d 215, 347 N.E.2d 575).

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   The People's circumstantial case was overwhelming and the jury had ample basis upon which to discredit defendant's testimony.

 The court properly granted the People's request for a missing witness charge with respect to defendant's brother.   Although the brother initially cooperated with the police in the investigation since he mistakenly believed that he was helping defendant locate a car he had purchased, the court properly rejected defendant's contention that his brother was under the control of the People, rather than defendant (see, People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583).

 Defendant's contentions with respect to the prosecutor's summation are unpreserved for failure to object or lack of specific objection and we decline to review them in the interest of justice.   Were we to review these claims, we would find that although some of the prosecutor's comments were improper, defendant was not deprived of a fair trial since there was no pattern of inflammatory, prejudicial remarks and the evidence of guilt was overwhelming (People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. D'Alessandro, 184 A.D.2d 114, 591 N.Y.S.2d 1001, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977).   The challenged portions of the People's cross-examination were permissible in light of the claims made by defendant in his direct testimony (see, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724).

 We perceive no abuse of sentencing discretion and find that defendant's claim that the sentence was based on improper criteria is unpreserved and unsupported by the record.

MEMORANDUM DECISION.