PEOPLE v. FERGUSON

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

The PEOPLE of the State of New York, Respondent, v. James FERGUSON, Defendant-Appellant.

Decided: June 10, 1997

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER, ELLERIN and MAZZARELLI, JJ. Rahul Kale, for Respondent. Rosali Vazquez, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered February 2, 1995, convicting defendant, after a jury trial, of attempted murder in the second degree, criminal use of a firearm in the first degree, assault in the first degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 8 1/3 to 25 years, 12 1/2 to 25 years, 5 to 15 years and 5 to 15 years, respectively, unanimously affirmed.

The court properly exercised its discretion in declining to adjourn this short trial until the following week to await the appearance of a defense witness who had already been absent, without explanation, for two days.   There was no reliable indication that the witness would ever appear or that the witness's testimony would be of any benefit to defendant (People v. Hunt, 235 A.D.2d 374, 653 N.Y.S.2d 13).

Defendant's challenges to the prosecutor's summation remarks are unpreserved, and are without merit since the challenged remarks were proper comments on issues of credibility and fair responses to defendant's summation.

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.