PEOPLE v. SPRATLEY (1997)

Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.), rendered March 10, 1995, convicting him of assault in the first degree (two counts), attempted robbery in the first degree (two counts), attempted robbery in the second degree, criminal use of a firearm in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's current claim that the People's summation improperly drew attention to the fact that he did not testify is not preserved for appellate review.   The defendant's objection to the prosecutor's comment during summation that it was “uncontroverted” that the complainant was accosted by three would-be robbers had a totally different basis (see, CPL 470.05 [2];  People v. Luperon, 85 N.Y.2d 71, 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243;  People v. Mingey, 190 N.Y. 61, 82 N.E. 728).   In any event, the statement was not improper as the defendant was not the only person who could have contradicted the evidence (see, People v. Maimone, 9 A.D.2d 780, 193 N.Y.S.2d 90, affd. People v. Akel, 7 N.Y.2d 998, 199 N.Y.S.2d 510, 166 N.E.2d 514, cert. denied 364 U.S. 827, 81 S.Ct. 67, 5 L.Ed.2d 56), and therefore, an adverse inference concerning his failure to testify was not an inevitable conclusion to be drawn from it (see, People v. Gilmore, 152 A.D.2d 743, 544 N.Y.S.2d 378;  People v. Garcia, 51 A.D.2d 329, 381 N.Y.S.2d 271, affd. 41 N.Y.2d 861, 393 N.Y.S.2d 709, 362 N.E.2d 260).  Moreover, the People's comment was a fair response to the defendant's attack on the credibility of the complainant and the co-perpetrator (see, People v. Gilmore, 106 A.D.2d 399, 401, 482 N.Y.S.2d 317;  People v. Gibbs, 207 A.D.2d 739, 617 N.Y.S.2d 2).

MEMORANDUM BY THE COURT.