The People of the State of New York, Respondent, v. Darryl Smith, Appellant

The People of the State of New York, Respondent, v Darryl Smith, Appellant. [MAJORITY] — Judgment, Supreme Court, New York County (Alfred Kleiman, J.), rendered April 30, 1991, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a violent predicate felony offender, to a term of 3Vi to 7 years, unanimously affirmed. Contrary to defendant’s contention, a missing witness charge is not a necessary predicate to comment on the failure of a party to produce relevant evidence (People v Zillinger, 179 AD2d 382). The prosecutor’s use of rhetorical questions to note the absence of a central figure in the defense case did not assign an obligation to defendant to produce the witness. Moreover, any possible prejudice or confusion was alleviated by the court’s instructions (People v Hagi, 169 AD2d 203, 216). The court’s charge on the use of deadly physical force was proper since the defendant’s use of the razor clearly demonstrated the use of deadly physical force rather than simply physical force. Concur — Carro, J. P., Milonas, Rosenberger, Ellerin and Kupferman, JJ.