People v. Jackson , 838 N.Y.S.2d 108 ( 2007 )

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered April 16, 2004, convicting him of robbery in the first degree (five counts), robbery in the second degree (six counts), grand larceny in the second degree, and burglary in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, he was not deprived of his right to present a defense as a result of the trial court’s refusal to grant him a continuance to secure the testimony of Tahira Bailey, who had given certain alibi testimony at the defendant’s first trial, which had ended in a mistrial. The decision of whether to grant a continuance is a matter that is committed to the trial court’s sound discretion (see People v Foy, 32 NY2d 473, 476 [1973]). However, where, as here, the protection of fundamental rights is involved, the court’s discretion is “more narrowly construed” (People v Spears, 64 NY2d 698, 699-700 [1984]).

Although there is no “mechanical rule” to be followed when determining whether or not to grant a continuance to secure testimony that might further a defense, one consideration is whether the defendant has diligently and in good faith attempted to secure the witness’s presence (see People v Foy, supra at 476). Here, the defendant, whose first trial concluded three months before the commencement of his second trial, had ample time to insure Bailey’s presence at the second trial, yet failed to do so (see People v Drummond, 233 AD2d 339 [1996]; People v Daniels, 128 AD2d 632 [1987]; People v Hayes, 116 AD2d 737 [1986]).

Another consideration is whether a continuánce has previously been sought (see People v Singleton, 41 NY2d 402, 405-407 [1977]). Here, the trial court had already granted a prior application that the defendant had made for a continuance to secure Bailey’s testimony (see People v Savareese, 258 AD2d 484, 485 [1999]; People v Perez, 249 AD2d 492, 493 [1998]; People v Drummond, supra at 339).

Yet another consideration is whether the witness’s testimony would be cumulative (see People v Rodriguez, 188 AD2d 494, 494-495 [1992]). That was the case here. While Bailey might have provided alibi testimony, the defendant, who was accused of robbing a jewelry store, adduced alibi testimony from another witness, who, as Bailey did at the first trial, averred that the defendant was actually at home while the robbery was being committed (see People v Nieves, 290 AD2d 371, 372 [2002]).

In light of these considerations, we cannot conclude, as our dissenting colleague does, that the trial court improvidently exercised its discretion in denying the defendant’s application for a second continuance. Furthermore, contrary to the defendant’s contention, under the circumstances, the trial court also properly denied his alternative application to have Bailey’s testimony from the first trial introduced into evidence at the second trial (see CPL 670.10 [1]).

The defendant contends that he was deprived of his right to a fair trial by virtue of certain remarks made by the prosecutor on summation. His contention that the prosecutor impermissibly shifted the burden of proof by questioning the defendant’s failure to produce a second alibi witness or to call additional family members to testify on his behalf is unpreserved for appellate review, since he failed to seek curative instructions or move for a mistrial when his objections were sustained (see CPL 470.05 [2]; People v Hines, 18 AD3d 882, 883-884 [2005]; People v Morris, 2 AD3d 652, 653 [2003]). The defendant’s contention that he was deprived of a fair trial by the prosecutor’s assertion that no person can provide a detailed description of another person unless he or she has artistic training, a conclusion that went beyond the facts adduced at trial, is unpreserved for appellate review since the defendant failed to make a timely objection to the comment. His challenge to the prosecutor’s characterization of the defense strategy as “insulting to the intelligence” and “silly” is unpreserved for appellate review for the same reason, as is his contention that the prosecutor mischaracterized the defense by suggesting that the defendant took the position that the complainants falsely accused the defendant for no reason whatsoever. The defendant’s contention that the prosecutor improperly vouched for the credibility of the People’s witnesses is likewise unpreserved for appellate review since the defendant failed to make a timely or specific objection to the challenged comment. In any event, all of the challenged remarks were both fair comment on the evidence (see People v Ashwal, 39 NY2d 105, 109 [1976]), and responsive to arguments and issues raised by the defense (see People v Shagi, 288 AD2d 495, 496 [2001]).

The defendant’s contention that the prosecutor improperly failed to turn over certain reports in violation of People v Rosario (9 NY2d 286 [1961], cert denied 368 US 866 [1961]), which is raised for the first time on appeal in his supplemental pro se brief, is based on matter dehors the record, and cannot be reviewed on this direct appeal from the judgment (see People v Rescigno, 248 AD2d 564, 565 [1998]; People v Bell, 161 AD2d 772, 772-773 [1990]). Schmidt, J.P., Santucci and Covello, JJ., concur.