Opinion
September 25, 1997
Appeal from Supreme Court, New York County (Thomas Galligan, J.).
The verdict was not against the weight of the evidence. We see no reason to disturb the jury's credibility determinations ( see, People v. Gaimari, 176 N.Y. 84, 94).
The court properly granted the People's request for a missing witness charge with regard to defendant's girlfriend, who was under the control of defendant and whose noncumulative testimony on the issue of defendant's whereabouts at the time the crime was committed would have been material to the defendant's alibi defense ( see, People v. Rodriguez, 38 N.Y.2d 95, 101; see also, People v. Gonzalez, 68 N.Y.2d 424). Defendant's explanation for failing to call the witness was inadequate, given the potential significance of her testimony.
Concur — Murphy, P.J., Milonas, Wallach, Rubin and Mazzarelli, JJ.