Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered December 7, 2010. The judgment convicted defendant, upon a jury verdict, of attempted murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]). Contrary to defendant’s contention, the conviction is supported by legally suf
Contrary to defendant’s further contention, we conclude that Supreme Court properly denied his request for a missing witness charge with respect to the victim’s cousin and friend, respectively. “ ‘The request, made after the close of the proof, was untimely’ ” (People v Garrido-Valdez, 299 AD2d 858, 859 [2002], lv denied 99 NY2d 614 [2003]; see People v Garner, 52 AD3d 1329, 1330 [2008], lv denied 11 NY3d 788 [2008]). Defendant failed to preserve for our review his contention that he was deprived of a fair trial based on prosecutorial misconduct during summation (see People v McEathron, 86 AD3d 915, 916 [2011]; People v Lyon, 77 AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010]) and, in any event, that contention is without merit. To the extent that the prosecutor referred to the defense’s failure to “contradict” the proof offered by the People and to the theories of the defense as a “distraction” and “nonsense,” we conclude that such conduct, although improper, was not so egregious as to deprive defendant of a fair trial (see People v Carr, 59 AD3d 945, 946 [2009], affd 14 NY3d 808 [2010]; see also McEathron, 86 AD3d at 916-917; Lyon, 77 AD3d at 1339).
We also reject defendant’s contention that he was denied effective assistance of counsel. Defendant contends that he received ineffective assistance based on his trial counsel’s consent to a mistrial after a jury was selected and sworn in the first trial. We agree with defendant that, by consenting to a mistrial at that stage of the proceedings, defense counsel waived any claim of double jeopardy and foreclosed any challenge to the necessity of declaring a mistrial (see generally People v Catten, 69 NY2d 547, 553-554 [1987]; People v Ferguson, 67 NY2d 383, 387-388 [1986]). Nevertheless, we reject defendant’s contention that he was thereby denied effective assistance of counsel inasmuch as he failed to “ ‘demonstrate the absence of strategic or other legitimate explanations’ for counsel’s allegedly deficient conduct” (People v Caban, 5 NY3d 143, 152 [2005]). We also reject defendant’s contention that he was denied effective assistance of counsel based on the failure of defense counsel to object to the allegedly improper comments made by the prosecutor on summation. As previously noted herein, “defendant was not denied a fair trial by [the prosecutor’s improper commentary on summation relating to the defense], and the remaining instances of alleged prosecutorial misconduct on summation did not in fact constitute prosecutorial misconduct” (Lyon, 77 AD3d at 1339; see People v Hill, 82 AD3d 1715, 1716 [2011], lv denied 17 NY3d 806 [2011]; see generally Caban, 5 NY3d at 152). Finally, the sentence is not unduly harsh or severe. Present — Scudder, P.J., Smith, Fahey, Lindley and Martoche, JJ.