The People of the State of New York, Respondent, v. Juan Gomez, Also Known as Titanic, Appellant

The People of the State of New York, Respondent, v Juan Gomez, Also Known as Titanic, Appellant. [30 NYS3d 234] [MAJORITY] Appeal by the defendant from a judgment of the County Court, Suffolk County (Ambro, J.), rendered June 13, 2014, convicting him of murder in the second degree and conspiracy in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Guzman, 134 AD3d 852, 853 [2015]; People v Mazyck, 118 AD3d 728, 728 [2014]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Contrary to the defendant’s contention, the testimony of the main prosecution witness was not incredible as a matter of law (see People v McClough, 135 AD3d 880 [2016]; People v Davis, 299 AD2d 420, 422 [2002]). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the factfinder’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The defendant failed to preserve for appellate review his contention that he was deprived of his right to a fair trial by the prosecutor’s alleged violation of the County Court’s Molineux ruling (see People v Molineux, 168 NY 264 [1901]; People v Laverpool, 52 AD3d 622, 623 [2008]; People v Olibencia, 45 AD3d 607, 609 [2007]; People v Ingram, 258 AD2d 533 [1999]). In any event, the prosecutor did not violate the court’s Molineux ruling (see People v Rock, 65 AD3d 558, 559 [2009]). In addition, the defendant did not object to the Molineux charge as given, and thus his claim that the charge was inadequate is unpreserved for appellate review (see CPL 470.05 [2]; People v Dei, 2 AD3d 1459, 1460 [2003]), and, in any event, without merit. The County Court properly denied the defendant’s application for a missing witness charge regarding a New York State Police investigator. A party seeking a missing witness charge “must sustain an initial burden of showing that the opposing party has failed to call a witness who could be expected to have knowledge regarding a material issue in the case and to provide testimony favorable to the opposing party” (People v Macana, 84 NY2d 173, 177 [1994]). Here, the defendant failed to make a prima facie showing that the uncalled witness could be expected to have knowledge about a material issue in the case or that his testimony would be favorable to the People (see People v Salmon, 291 AD2d 512, 512-513 [2002]; People v Moore, 268 AD2d 491 [2000]). The defendant’s contentions that the County Court committed reversible error when it referred a witness’s accomplice status to the jury for resolution as a question of fact, and that the prosecution failed to present sufficient nonaccomplice testimony to corroborate the witness’s testimony, are unpreserved for appellate review (see CPL 470.05 [2]; People v Argentina, 27 AD3d 569, 570 [2006]; People v Roque, 291 AD2d 417 [2002]). In any event, the court properly instructed the jury that the issue of whether the witness was an accomplice was a question of fact, inasmuch as competing inferences regarding his complicity could reasonably have been drawn from the evidence adduced at the trial (see People v Visich, 57 AD3d 804, 806 [2008]). The defendant failed to preserve for appellate review his contention that he was deprived of his right to a fair trial due to remarks the prosecutor made on summation (see CPL 470.05 [2]). In any event, the challenged remarks either constituted fair comment on the evidence and the inferences to be drawn therefrom (see People v Patterson, 121 AD2d 406 [1986]), were within the broad bounds of rhetorical comment permissible in closing arguments and constituted fair response to arguments made by defense counsel in summation (see People v Rios, 105 AD3d 873 [2013]), or were not so derogatory as to deprive the defendant of a fair trial (see People v Tavarez, 135 AD3d 973 [2016]; People v Caba, 101 AD3d 896 [2012]). The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Eng, P.J., Mastro, Leventhal and Miller, JJ., concur.