People v. Vargas , 176 A.D.2d 450 ( 1991 )

— Judgment, Supreme Court, Bronx County (Vincent Vi-tale, J.), rendered March 22, 1989, convicting defendant, after jury trial, of attempted murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent indeterminate terms of imprisonment from 12 to 24 years and IVi to 15 years, respectively, unanimously affirmed.

Defendant was convicted of shooting his common law wife. Although she survived a single bullet wound to her head, she suffered severe brain damage with a loss of memory and was unable to recall who had shot her, although she had recall of events preceding the shooting. She testified that defendant was often drunk and abusive, and had threatened her with a gun approximately one month before the shooting. The testimony of neighbors established that defendant and his wife were fighting on the night of the shooting and that defendant was seen emerging from the apartment with blood on his hands as his wife lay bleeding on the kitchen floor. Although defendant denied owning a gun or committing the crime charged, he admitted that he had physically abused his wife in the past.

On appeal, defendant contends that the prosecutor committed misconduct on summation, when he stated that had the family of the victim wanted "to get this guy [the defendant]”, they would have advised the wife to testify that the defendant had shot her. The error is unpreserved (CPL 470.05), and does not warrant consideration in view of the overwhelming evidence of defendant’s guilt. In any event, the comment was directly responsive to defendant’s argument on summation that the wife did not in fact recall any of the events of that night, and that what she did claim to recall had been "supplied to her” by her family. (People v Rivera, 171 AD2d 583.) Concur — Milonas, J. P., Ellerin, Kupferman, Ross and Rubin, JJ.