Appeal from a judgment of the City Court of Mount Vernon, Westchester County (Adam Seiden, J.), rendered August 26, 2009. The judgment convicted defendant, upon a jury verdict, of assault in the third degree and harassment in the second degree.

ORDERED that the judgment of conviction is affirmed.

Defendant was convicted, following a jury trial, of assault in the third degree (Penal Law § 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]). Defendant's contention that his cross-examination by the prosecutor denied him a fair trial, because the prosecutor's questions sought to characterize defendant as "a liar," is not preserved for appellate review (CPL 470.05 [2]). In any event, the court sustained defense counsel's objection to the questioning on the cross-examination of defendant, and defense counsel neither requested curative instructions nor timely moved for a mistrial. Under these circumstances, the court's ruling must be deemed to have corrected the error to defendant's satisfaction (see People v Heide, 84 NY2d 943 [1994]; People v Bajana, 82 AD3d 1111 [2011]).

Defendant's contention concerning the prosecutor's summation is likewise unpreserved. The objection was not preserved by defense counsel's motion for a mistrial, since the motion was not made until after the prosecutor had completed her summation (see People v Romero, 7 NY3d 911, 912 [2006]; People v Damon, 78 AD3d 860 [2010]). In any event, reversal is not warranted, as the challenged remarks were not so egregious as to have denied defendant a fair trial (see People v Galloway, 54 NY2d 396, 401 [1981]; People v Brosnan, 32 NY2d 254, 261-262 [1974]; People v Valencia, 80 AD3d 632, 633 [2011]), and any error resulting from the remarks was harmless in light of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d 230, 241 [1975]; People v Ayala, 69 AD3d 869, 869-870 [2010]).

Defense counsel's requests for missing witness charges were also properly denied. A missing witness charge is warranted for a party's failure to produce a witness, under its control, where his or her testimony would have been material and noncumulative of other testimony or evidence (see People v Edwards, 14 NY3d 733 [2010]; People v Macana, 84 NY2d 173, 177 [1994]; People v Gonzalez, 68 NY2d 424, 427 [1986]). Here, defendant failed to establish that either uncalled witness was under the control of the People (see People v Gonzalez, 68 NY2d at [*2]429), or that the witnesses' testimony would have been noncumulative (see People v Edwards, 14 NY3d at 735). Therefore, the City Court properly found that defendant was not entitled to the missing witness charges.

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: July 07, 2011