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

The PEOPLE, etc., respondent, v. Michael WOOD, appellant.

Decided: April 24, 2000

CORNELIUS J. O'BRIEN, J.P., WILLIAM C. THOMPSON, SONDRA MILLER and HOWARD MILLER, JJ. Sally Wasserman, Westbury, N.Y., for appellant. Denis Dillon, District Attorney, Mineola, N.Y. (Andrea M. DiGregorio and Leigh Neren of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Calabrese, J.), rendered April 22, 1998, convicting him of murder in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 While a defendant is under no duty to call any witnesses and, ordinarily, the prosecution should not comment on his or her failure to do so (see, People v. Gonzalez, 97 A.D.2d 423, 467 N.Y.S.2d 260;  People v. LaSusa, 87 A.D.2d 578, 447 N.Y.S.2d 738;  People v. Thompson, 75 A.D.2d 830, 427 N.Y.S.2d 464), if a defendant elects to adduce affirmative proof of his innocence, his failure to call material witnesses under his control in support of his defense may be brought to the attention of the jury and does not constitute an impermissible effort to shift the burden of proof (see, People v. Tankleff, 84 N.Y.2d 992, 994, 622 N.Y.S.2d 503, 646 N.E.2d 805;  People v. Wilson, 64 N.Y.2d 634, 636, 485 N.Y.S.2d 40, 474 N.E.2d 248;  People v. Johnson, 167 A.D.2d 422, 561 N.Y.S.2d 830;  People v. Shaw, 112 A.D.2d 958, 959-960, 492 N.Y.S.2d 470).   The defendant testified regarding his emotional state upon his arrival at a friend's home to establish that he did not commit the crimes charged.   Accordingly, the prosecutor properly brought to the jury's attention the defendant's failure to call this friend as a witness.


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