PEOPLE v. MILES (2018)

Judgment, Supreme Court, Bronx County (George R. Villegas, J.), rendered October 29, 2014, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

By failing to object, making general objections or failing to request any further relief after the court sustained an objection, defendant failed to preserve his present challenges to the prosecutor's summation (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006] ).  “The word ‘objection’ alone [is] insufficient to preserve [an] issue” for review as a question of law (People v. Tevaha, 84 N.Y.2d 879, 881, 620 N.Y.S.2d 786, 644 N.E.2d 1342 [1994] ), and defendant's assertion to the contrary is unavailing.  We decline to review these challenges in the interest of justice.  As an alternative holding, we conclude that while some of the challenged remarks should have been avoided, they were not so egregious or pervasive as to have deprived defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).  In particular, when viewed in context, the prosecutor's brief, ill-conceived reference to an appeal following a conviction was not unduly prejudicial.

We also conclude that defendant was not deprived of a fair trial by the prosecutor's reference in his opening statement to a witness who ultimately did not testify.  Defendant has not established either bad faith on the People's part or undue prejudice (see People v. De Tore, 34 N.Y.2d 199, 207, 356 N.Y.S.2d 598, 313 N.E.2d 61 [1974], cert. denied sub nom. Wedra v. New York, 419 U.S. 1025, 95 S.Ct. 503, 42 L.Ed.2d 300 [1974] ).  Furthermore, defendant abandoned his request for a curative instruction, and only requested the drastic remedy of a mistrial.

The court properly excluded the testimony of defendant's toxicologist, because he could not provide any competent evidence bearing on the credibility of a People's witness whom the defense claimed to have been intoxicated at the time of the incident (see generally People v. Davis, 43 N.Y.2d 17, 27, 400 N.Y.S.2d 735, 371 N.E.2d 456 [1977], cert denied 438 U.S. 914, 98 S.Ct. 3143, 57 L.Ed.2d 1160 [1978] ).  Defendant's theory of admissibility was excessively speculative and tenuous.