People v. Diaz

The defendant’s claim that the trial court unfairly marshalled the evidence is unpreserved for appellate review (CPL 470.05 [2]; People v West, 56 NY2d 662). In any event, upon reviewing the record, we find that the trial court’s marshalling of the evidence did not deprive the defendant of a fair trial (see, People v Saunders, 64 NY2d 665; People v Culhane, 45 NY2d 757, cert denied 439 US 1047; see also, People v Gray, 144 AD2d 483; People v McDonald, 144 AD2d 701).

We also find that the court properly denied the defendant’s request for a missing witness charge (People v Kitching, 78 NY2d 532; People v Gonzalez, 68 NY2d 424; People v Aufiero, 139 AD2d 656). Kunzeman, J. P., Balletta, Miller and Ritter, JJ., concur.