Opinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Allen CEHFUS, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Evan Hannay of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of Counsel), For Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Evan Hannay of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of Counsel), For Respondent.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM: Defendant appeals from a judgment convicting him upon a jury verdict of driving while intoxicated, a class E felony (Vehicle and Traffic Law § 1192[3] ), aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3][a] ), and resisting arrest (Penal Law § 205.30 ).
We reject defendant's contention that County Court erred in denying his request for a missing witness charge. Defendant failed to establish that the witness's testimony would have been noncumulative (see People v. Welch, 307 A.D.2d 776, 777–778, 763 N.Y.S.2d 701, lv. denied 100 N.Y.2d 625, 767 N.Y.S.2d 409, 799 N.E.2d 632 ), and defendant's assertion that the witness “presumably” could have provided noncumulative testimony is speculative (see People v. Gonzalez, 16 A.D.3d 283, 284, 792 N.Y.S.2d 407, lv. denied 5 N.Y.3d 766, 801 N.Y.S.2d 260, 834 N.E.2d 1270 ). In any event, we conclude that any error in the court's refusal to give a missing witness charge is harmless inasmuch as the evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the error (see People v. Fields, 76 N.Y.2d 761, 763, 559 N.Y.S.2d 951, 559 N.E.2d 645 ; People v. Comfort, 31 A.D.3d 1110, 1112, 817 N.Y.S.2d 811, lv. denied 7 N.Y.3d 847, 823 N.Y.S.2d 776, 857 N.E.2d 71 ; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
We reject defendant's further contention that the court issued an erroneous jury instruction. “Generally, in determining whether a jury charge was proper, the test is ‘whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied’ ... Parts of jury charges cannot be read ‘alone and in a vacuum’ ” (People v. McDaniels, 19 A.D.3d 1071, 1071, 796 N.Y.S.2d 484, lv. denied 5 N.Y.3d 830, 804 N.Y.S.2d 45, 837 N.E.2d 744 ). Considering the adequacy of the jury charge as a whole against the background of the evidence presented at the trial (see People v. Andujas, 79 N.Y.2d 113, 118, 580 N.Y.S.2d 719, 588 N.E.2d 754 ), we conclude that the charge here was proper (see People v. Waldriff, 46 A.D.3d 1448, 1448, 847 N.Y.S.2d 795, lv. denied 9 N.Y.3d 1040, 852 N.Y.S.2d 25, 881 N.E.2d 1212 ; see also People v. Fisher, 101 A.D.3d 1786, 1787, 956 N.Y.S.2d 391, lv. denied 20 N.Y.3d 1098, 965 N.Y.S.2d 794, 988 N.E.2d 532 ).
Finally, contrary to defendant's assertion, New York's persistent felony offender statute is constitutional on its face and as applied in this case (see People v. Battles, 16 N.Y.3d 54, 59, 917 N.Y.S.2d 601, 942 N.E.2d 1026, cert. denied ––– U.S. ––––, 132 S.Ct. 123, 181 L.Ed.2d 46 ; People v. Tuszynski, 120 A.D.3d 1568, 1569, 993 N.Y.S.2d 402, lv. denied 25 N.Y.3d 954, 7 N.Y.S.3d 283, 30 N.E.3d 174 ), and the court did not abuse its discretion in sentencing defendant as a persistent felony offender (see People v. Boykins, 134 A.D.3d 1542, 1543, 22 N.Y.S.3d 774 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.