PEOPLE v. BRENT PRIDGEN (2008)

 Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [2] ), burglary in the first degree (§ 140.30[1] ), and criminal possession of a weapon in the second degree (former § 265.03[2] ).   County Court properly refused to charge the jury that a certain witness was an accomplice as a matter of law.   It cannot be said that “the jury could reasonably reach no other conclusion” than that the witness was an accomplice (People v. Cobos, 57 N.Y.2d 798, 801, 455 N.Y.S.2d 588, 441 N.E.2d 1106).   Contrary to defendant's further contention, the court properly instructed the jury that the issue whether defendant's conduct indicated a consciousness of guilt was for the jury's determination (see People v. Baxter, 299 A.D.2d 845, 749 N.Y.S.2d 812).   Defendant's request for a missing witness charge with respect to one of defendant's accomplices was untimely (see generally People v. Erts, 73 N.Y.2d 872, 874, 537 N.Y.S.2d 796, 534 N.E.2d 833) and, in any event, the court properly denied defendant's request because the People met their burden of establishing “that the witness [was] not under [their] ‘control’ such that he would not be expected to testify in [their] favor” (People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583;  see People v. Jean-Baptiste, 37 A.D.3d 852, 829 N.Y.S.2d 919).

 We further conclude that defendant was not deprived of a fair trial by prosecutorial misconduct.   It does not appear on the record before us that the conduct of the prosecutor during his cross-examination of defendant was intended “ ‘merely to harass, annoy or humiliate’ ” defendant (People v. Stanard, 42 N.Y.2d 74, 83, 396 N.Y.S.2d 825, 365 N.E.2d 857, cert. denied 434 U.S. 986, 98 S.Ct. 615, 54 L.Ed.2d 481, quoting Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624).   Rather, it appears that the cross-examination was intended to place defendant “ ‘in his proper setting and put the weight of his testimony and his credibility to a test, without which a jury cannot fairly appraise [the facts]’ ” (id., quoting Alford, 282 U.S. at 692, 51 S.Ct. 218).   Further, none of the prosecutor's comments during summation “ ‘caused such substantial prejudice to the defendant that he [was] denied due process of law’ ” (People v. Rubin, 101 A.D.2d 71, 77, 474 N.Y.S.2d 348, lv. denied 63 N.Y.2d 711, 480 N.Y.S.2d 1038, 469 N.E.2d 114).

 Defendant failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence inasmuch as he failed to renew his motion for a trial order of dismissal after presenting evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396).   In any event, that contention is without merit, and we reject defendant's further contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Also contrary to the contention of defendant, he was not prejudiced by the court's refusal to exclude his inculpatory statement to the police inasmuch as the statement was not introduced in evidence (see generally People v. Brown, 290 A.D.2d 276, 736 N.Y.S.2d 30, lv. denied 97 N.Y.2d 727, 740 N.Y.S.2d 700, 767 N.E.2d 157).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: