PEOPLE v. WILLIAMS (2004)

 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 N.Y.2d 173, 177, 615 N.Y.S.2d 656, 639 N.E.2d 13).   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 A.D.2d 974, 711 N.Y.S.2d 376, lv. denied 95 N.Y.2d 863, 715 N.Y.S.2d 217, 738 N.E.2d 365).   The prosecutor's comments regarding “clothes-switching” by defendant were conclusions fairly inferable from the evidence (cf. People v. Ashwal, 39 N.Y.2d 105, 110, 383 N.Y.S.2d 204, 347 N.E.2d 564).   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 A.D.2d 977, 977-978, 720 N.Y.S.2d 679, lv. denied 96 N.Y.2d 860, 730 N.Y.S.2d 34, 754 N.E.2d 1117).   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 A.D.2d 1056, 1057, 735 N.Y.S.2d 693, lv. denied 98 N.Y.2d 641, 744 N.Y.S.2d 770, 771 N.E.2d 843), and, moreover, the identifications occurred in “close geographic and temporal proximity to the crime” (People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337).   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 A.D.2d 937, 937, 718 N.Y.S.2d 667, lv. denied 96 N.Y.2d 783, 725 N.Y.S.2d 647, 749 N.E.2d 216;  see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).

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

MEMORANDUM: