People v. Early

reject defendant’s contention that Supreme Court erred in refusing to give a missing witness charge. The testimony of those witnesses would have been cumulative (see, People v Gonzalez, 68 NY2d 424 , 428; People v Cooper, 197 AD2d 861 , lv denied 82 NY2d 892 ; People v Nelson, 186 AD2d 1068 , lv denied 81 NY2d 764 ). In any event, any error in the court’s failure to give that charge is harmless (see, People v Crimmins, 36 NY2d 230 , 241-242). Defendant failed to preserve for our review his contention that the court erred in permitting the People to present rebuttal testimony (see, CPL 470.05 [2]; People v Paterson, 227 AD2d 348 , lv denied 88 NY2d 991 ; People v Marshall, 221 AD2d 476 ; People v Cavallo, 167 AD2d 884 , lv denied 77 NY2d 876 ), and we decline to consider it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). Also unpreserved for our review are defendant’s contentions regarding misconduct by the prosecutor in her opening statement and summation (see, CPL 470.05 [2]; People v Balls, 69 NY2d 641 , 642; People v Eldridge, 221 AD2d 966 , 966-967, lv denied 87 NY2d 1019 ). In any event, the alleged misconduct was not so egregious as to deprive defendant of a fair trial (see, People v Pritchett, 248 AD2d 967 , lv denied 92 NY2d 929 ; People v Rubin, 101 AD2d 71 , 77, lv denied 63 NY2d 711 ). We have reviewed defendant’s remaining contention and conclude that it is without merit. (Appeal from Judgment of Supreme Court, Erie County, Rossetti, J. — Criminal Possession Weapon, 2nd Degree.) Present — Pine, J. P., Lawton, Hayes, Wisner and Scudder, JJ.