PEOPLE v. WOOD

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Leon WOOD, Defendant-Appellant.

Decided: December 23, 1997

Before MURPHY, P.J., and MILONAS, WALLACH, RUBIN and MAZZARELLI, JJ. William McGuire, for respondent. Carol A. Zeldin, for defendant-appellant.

Judgment, Supreme Court, New York County (Jay Gold, J.), rendered March 16, 1995, convicting defendant, after a jury trial, of robbery in the third degree and unauthorized use of a vehicle in the third degree, and sentencing him, as a second felony offender, to concurrent prison terms of 3 to 6 years and 1 year, respectively, unanimously affirmed.

 The court's receipt of testimony concerning defendant's drug addiction and an uncharged incident of harassment, followed by a limiting instruction, was a proper exercise of discretion, under the unusual circumstances presented, where the complainant was the mother of defendant.   The evidence was introduced not to establish criminal propensity but rather to establish defendant's motive for robbing his mother, and his mother's state of mind and reason for testifying against her son (People v. Grier, 162 A.D.2d 416, 557 N.Y.S.2d 68, lv. denied 76 N.Y.2d 1021, 565 N.Y.S.2d 771, 566 N.E.2d 1176), all of which was relevant to the particular issues developed at trial.

 The court properly precluded defense counsel from commenting during summation on the People's failure to call a witness to the robbery in light of the fact that she was the mother of defendant's son and refused to return the calls of the prosecutor (see, People v. Huhn, 140 A.D.2d 760, 527 N.Y.S.2d 643, lv. denied 72 N.Y.2d 919, 532 N.Y.S.2d 853, 529 N.E.2d 183).   Although comment upon the absence of a witness is not governed by the same standards as a request for a missing witness charge (People v. Tankleff, 84 N.Y.2d 992, 995, 622 N.Y.S.2d 503, 646 N.E.2d 805), in this case there was no basis whatsoever for such a comment (see, People v. Parks, 237 A.D.2d 105, 654 N.Y.S.2d 365, lv. denied 90 N.Y.2d 862, 661 N.Y.S.2d 189, 683 N.E.2d 1063;  People v. Ramirez, 221 A.D.2d 178, 633 N.Y.S.2d 155, lv. denied 87 N.Y.2d 1023, 644 N.Y.S.2d 157, 666 N.E.2d 1071).

MEMORANDUM DECISION.