Opinion
No. 570631/16
10-15-2024
The People of the State of New York, Respondent, v. Tounkara Balla, Defendant-Appellant.
Unpublished Opinion
MOTION DECISION
PRESENT: Tisch, J.P., James, Perez, JJ.
PER CURIAM.
Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Julio Rodriguez III, J.), rendered August 18, 2016, after a nonjury trial, convicting him of attempted assault in the third degree and harassment in the second degree, and imposing sentence.
Judgment of conviction (Julio Rodriguez III, J.), rendered August 18, 2016, affirmed.
The verdict convicting defendant of attempted assault in the third degree (see Penal Law §§ 110.00, 120.00[1]) and harassment in the second degree (see Penal Law § 240.26[3]) was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348-349 [2007]). The evidence established that defendant repeatedly struck his wife in the face during a domestic dispute, causing bleeding, swelling and a laceration. There is no basis for disturbing the court's determinations concerning credibility, including its acceptance of the responding police officer's testimony and its rejection of defendant's testimony.
The trial court providently exercised its discretion in denying missing witness charges as to the victim and one of the responding police officers. The non-testifying victim, defendant's wife and the mother of his children, "was unavailable based upon her refusal to testify... and was not under the control of the People such that she could be expected to give testimony favorable to the prosecution" (People v Hernandez, 256 A.D.2d 18, 19 [1998], lv denied 93 N.Y.2d 874 [1999], quoting People v Rivera, 234 A.D.2d 19, 20 [1996], lv denied 89 N.Y.2d 1040 [1997]; see People v Royster, 18 A.D.3d 375, 375-376 [2005], lv denied 5 N.Y.3d 794 [2005]).
The court properly denied defendant's request for a missing witness charge as to the uncalled police officer, since his testimony would have been cumulative to the testimony of the officer who did testify at trial (see People Baretta, 11 A.D.3d 329, 330 [2004], lv denied 4 N.Y.3d 741 [2004]).