Appeal from judgments of the District Court of Suffolk County, First District (Stephen Behar, J.), rendered December 13, 2005. The judgments convicted defendant, upon jury verdicts, of two charges of criminal contempt in the second degree.

Judgments of conviction affirmed.

Viewing the evidence in a light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of two charges of criminal contempt in the second degree (Penal Law § 215.50 [3]) beyond a reasonable doubt. Moreover, upon the exercise of our factual
review power, we are satisfied that the verdicts were not against the weight of the evidence (see CPL 470.15 [5]). Resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the trier of fact, which had the opportunity to see and hear the witnesses (see People v Gaimari, 176 NY 84 [1903]). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v Garafolo, 44 AD2d 86 [1974]).

Upon our review of the record, we find that the trial judge did not excessively question the defense witness nor assume the role of an advocate thereby depriving the defendant of his right to a fair trial (see People v Perez, 30 AD3d 542 [2006]). Furthermore, the defendant's contention that the trial court erred in refusing to give a missing witness charge as to the friend [*2]of the prosecution's witness, who was also allegedly present when the incident occurred, is without merit (see People v Gonzalez, 68 NY2d 424 [1986]; People v Drayton, 24 AD3d 686 [2005]). Defendant failed to establish that said witness would "naturally be expected to provide noncumulative testimony favorable to the [People]" (People v Marsalis, 22 AD3d 866, 868 [2005]). In any event, the defendant failed to meet his burden of establishing that said person was under the control of the prosecution (see id.). Likewise, there is no merit to defendant's contention that he was prejudiced and deprived of his right to a fair trial by the court's alleged error in initially omitting a missing witness charge as to Miguel Gonzalez.

Furthermore, defendant's assertion that the alibi defense charge was confusing and shifted the burden to the defendant is unpreserved for appellate review since defense counsel made no objection at the conclusion of the court's charge (see CPL 470.05 [2]; People v Spaulding, 7 Misc 3d 131[A], 2005 NY Slip Op 50555[U] [App Term, 9th & 10th Jud Dists]). In any event, while a portion of the court's alibi charge may have been improper, to wit, the court began by stating that the defendant had to prove his alibi defense by a preponderance of the evidence, the court thereafter corrected itself by specifically stating that the People had the burden of proving defendant's guilt beyond a reasonable doubt and that the burden never shifted. Accordingly, the charge should be read in its entirety and considered as a whole.

Turning to defendant's remaining contention, we disagree that the prosecutor's comments during summation shifted the burden of proof to defendant. The prosecutor's comments about the defendant's failure to present certain alibi witnesses were fair comment within " the four corners of the evidence' (People v Ashwal, 39 NY2d 105, 109; People v Stephens, 161 AD2d 740)" (People v Guillebeaux, 229 AD2d 399
[1996]). Since the defendant chose to present an alibi defense, the prosecutor's [*3]
comments did not constitute an impermissible effort to shift the burden of proof (id.; see also People v Tankleff, 84 NY2d 992 [1994]; People v Rivera, 292 AD2d 549 [2002]). Angiolillo, J.P., and McCabe J., concur.

Tanenbaum, J., dissents in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
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PRESENT : ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ.

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THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

-against-

NO. 2005-1949 S CR

DECIDED
LOWENKY NUNEZ,
Appellant.
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Tanenbaum, J., dissents in the following memorandum:

A review of the record on appeal reveals that there was an impermissible shifting of the burden of proof from the People to the defendant during the testimonial portion of the trial and summation. Accordingly, the judgments of conviction should be reversed and the matter remanded to the court below for a new trial.
Decision Date: November 30, 2006