Opinion
2013-06484, Ind. No. 228/12.
04-15-2015
The PEOPLE, etc., respondent, v. Michael FAGEN, appellant.
Bruce R. Bekritsky, Mineola, N.Y., for appellant. Madeline Singas, Acting District Attorney, Mineola, N.Y. (Yael V. Levy and Ames C. Grawert of counsel), for respondent.
Bruce R. Bekritsky, Mineola, N.Y., for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Yael V. Levy and Ames C. Grawert of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz, J.), rendered June 12, 2013, convicting him of offering a false instrument for filing in the first degree (18 counts) and petit larceny, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The trial court providently exercised its discretion in declining to give a missing witness instruction to the jury (see People v. Savinon, 100 N.Y.2d 192, 196, 761 N.Y.S.2d 144, 791 N.E.2d 401 ; People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583 ). Contrary to the defendant's contention, the uncalled witnesses' testimony would have been cumulative (see People v. Gallardo, 58 A.D.3d 867, 873 N.Y.S.2d 106 ; People v. Iverson, 56 A.D.3d 491, 492, 866 N.Y.S.2d 366 ; People v. Smith, 49 A.D.3d 904, 905–906, 855 N.Y.S.2d 572 ).
To the extent that the defendant contends that the verdict was repugnant or factually inconsistent, his contention is unpreserved for appellate review (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280 ; People v. Clayborne, 123 A.D.3d 842, 996 N.Y.S.2d 538 ; People v. Watson, 82 A.D.3d 1276, 1277, 919 N.Y.S.2d 861, affd. 20 N.Y.3d 182, 957 N.Y.S.2d 669, 981 N.E.2d 265 ). In any event, the verdict was not repugnant or factually inconsistent (cf. People v. DeLee, 24 N.Y.3d 603, 608–609 ; People v. Abraham, 22 N.Y.3d 140, 146, 978 N.Y.S.2d 723 ).
The defendant's remaining contentions are without merit.
DILLON, J.P., DICKERSON, DUFFY and BARROS, JJ., concur.