People v. Bae

Full title: The People of the State of New York, respondent, v. John Bae, appellant.

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Mar 2, 2016

2016 N.Y. Slip Op. 1503 (N.Y. App. Div. 2016)

Opinion

2012-05191

03-02-2016

The People of the State of New York, respondent, v. John Bae, appellant.

Lynn W. L. Fahey, New York, NY (Joshua M. Levine of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Ushir Pandit of counsel), for respondent.

WILLIAM F. MASTRO, J.P.

L. PRISCILLA HALL JOSEPH J. MALTESE HECTOR D. LASALLE, JJ. (Ind. No. 248/07)

Lynn W. L. Fahey, New York, NY (Joshua M. Levine of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Ushir Pandit of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered May 7, 2012, convicting him of gang assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court erred in denying his request for a missing witness charge is only partially preserved for appellate review since some of the specific arguments he now makes were not raised at trial (see CPL 470.05[2]; People v Facey, 104 AD3d 788, 789; People v Spinelli, 79 AD3d 1152; People v Lopez, 19 AD3d 510, 511). In any event, this contention is without merit, as the defendant failed to demonstrate that the testimony of the witness in question would have been favorable to the People (see People v Keen, 94 NY2d 533, 539; People v Gonzalez, 68 NY2d 424, 428), or that the witness was under the People's control (see People v Smith, 71 AD3d 1174, 1175; People v Jacobs, 65 AD3d 594, 596). The witness was equally available to both parties (see People v Clas, 54 AD3d 770, 771).

Under the circumstances of this case, including the seriousness of the crime and the defendant's subsequent arrests, the Supreme Court providently exercised its discretion in denying the defendant youthful offender treatment (see generally People v Drayton, 39 NY2d 580, 584).

The defendant's remaining contention is without merit.

MASTRO, J.P., HALL, MALTESE and LASALLE, JJ., concur. ENTER:

Aprilanne Agostino

Clerk of the Court