PEOPLE v. SMITH (1998)

Appeal from a judgment of the Supreme Court (Teresi, J.), rendered December 23, 1996 in Albany County, upon a verdict convicting defendant of the crime of assault in the second degree.

 Initially, we reject defendant's contention that the People committed reversible error when, during summation, the prosecutor commented upon defendant's failure to produce a witness.   Inasmuch as defendant testified on his own behalf, the People were entitled to bring to the jurors' attention defendant's failure to call a material witness who might be expected to testify favorably on his behalf (see, People v. Roundtree, 190 A.D.2d 879, 880, 593 N.Y.S.2d 345).   We also find no error in the People's limited reference to the definition of “serious physical injury” in order to give meaning to the facts referenced in the summation.   Moreover, any error in this regard was obviated when Supreme Court instructed the jury that it must accept the law as given to it by the court.   Finally, Supreme Court properly declined to charge assault in the third degree as a lesser included offense inasmuch as no fair view of the evidence would have supported such a finding (see, People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376).

ORDERED that the judgment is affirmed.

CREW, Justice.

MIKOLL, J.P., and MERCURE, YESAWICH and PETERS, JJ., concur.