Opinion
94 KA 19-01572
03-18-2022
The PEOPLE of the State of New York, Respondent, v. Michael B. COLLIER, Also Known as Michael B. Collier, Sr., Also Known as Michael Bernard Collier, Also Known as Michael Collier, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of attempted assault in the second degree ( Penal Law §§ 110.00, 120.05 [7] ). We affirm. Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Defendant contends that County Court erred in refusing to provide a missing witness instruction pertaining to the victim of the alleged assault. Even assuming, arguendo, that defendant's request was timely (see People v. Carr , 14 N.Y.3d 808, 809, 899 N.Y.S.2d 746, 926 N.E.2d 253 [2010] ; People v. Butler , 192 A.D.3d 1701, 1704, 144 N.Y.S.3d 518 [4th Dept. 2021], amended on rearg 196 A.D.3d 1093, 147 N.Y.S.3d 494 [4th Dept. 2021], lv denied 37 N.Y.3d 963, 148 N.Y.S.3d 755, 760, 171 N.E.3d 231, 236 [2021]; People v. Fuqua , 122 A.D.3d 1249, 1251, 996 N.Y.S.2d 410 [4th Dept. 2014] ), we conclude that the court properly denied defendant's request because he failed to establish any of the requirements necessary to support the charge (see generally People v. Smith , 33 N.Y.3d 454, 458-459, 104 N.Y.S.3d 572, 128 N.E.3d 649 [2019] ; People v. Brown , 139 A.D.3d 1178, 1179, 31 N.Y.S.3d 308 [3d Dept. 2016] ). But even assuming, arguendo, that the court erred in denying the request, we conclude that any error is harmless inasmuch as the evidence of guilt is overwhelming and there is no significant probability that defendant would have been acquitted but for the error (see People v. Crimmins , 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; People v. Coggins , 198 A.D.3d 1297, 1301, 153 N.Y.S.3d 740 [4th Dept. 2021] ; People v. Abdul-Jaleel , 142 A.D.3d 1296, 1296-1297, 38 N.Y.S.3d 645 [4th Dept. 2016], lv denied 29 N.Y.3d 946, 54 N.Y.S.3d 377, 76 N.E.3d 1080 [2017] ).
Finally, defendant waived his present contention that the court erred in admitting in evidence the surveillance video depicting the crime because, at trial, he consented to the admission of that evidence (see People v. Serrano , 164 A.D.3d 1658, 1659, 84 N.Y.S.3d 654 [4th Dept. 2018], lv denied 32 N.Y.3d 1129, 93 N.Y.S.3d 267, 117 N.E.3d 826 [2018] ; People v. Hutchings , 142 A.D.3d 1292, 1294, 38 N.Y.S.3d 863 [4th Dept. 2016], lv denied 28 N.Y.3d 1124, 51 N.Y.S.3d 21, 73 N.E.3d 361 [2016] ; People v. Santos-Sosa , 233 A.D.2d 833, 833, 649 N.Y.S.2d 622 [4th Dept. 1996], lv denied 89 N.Y.2d 988, 656 N.Y.S.2d 747, 678 N.E.2d 1363 [1997] ).