People v. Moore — 206 A.D.2d 391

Majority

p. 391

The People of the State of New York, Respondent, v James Moore, Appellant.

[614 NYS2d 318]

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Greenberg, J.), rendered July 9, 1991, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court did not improvidently exercise its discretion in denying the defendant’s request for an adjournment during the trial. The defendant failed to establish that he exercised sufficient diligence in attempting to produce his witness, or that he would be able to produce the witness if his request was granted (see, People v Foy, 32 NY2d 473 , 477; People v Moutinho, 146 AD2d 650 ).

The defendant’s contention that the prosecution’s summation comments regarding the codefendant’s out-of-court statement constituted reversible error is unpreserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245 ). In any event, the defendant testified that the detectives told him that the codefendant had implicated the defendant in the

p. 392

crime. The prosecution’s comments were either fair comment on the evidence at trial or fair response to defense counsel’s summation (see, People v Arce, 42 NY2d 179 , 190-191; People v Ashwal, 39 NY2d 105 ). Rosenblatt, J. P., Lawrence, Copertino and Joy, JJ., concur.

Cases cited

People v. Foy 32 NY2d 473 N.Y. 1973-06-07 at 477 p. 391
People v. Moutinho 146 AD2d 650 N.Y. App. Div. 1989-01-17 p. 391
People v. Udzinski 146 AD2d 245 N.Y. App. Div. 1989-04-17 p. 391
People v. Arce 42 NY2d 179 N.Y. 1977-07-07 at 190-191 p. 392
People v. Ashwal 39 NY2d 105 N.Y. 1976-04-01 p. 392