Opinion
2019–13187 Ind. No. 30/19
07-14-2021
The PEOPLE, etc., respondent, v. Nahyime GOLDSON, appellant.
Jonathan Rosenberg, Brooklyn, NY, for appellant. Miriam E. Rocah, District Attorney, White Plains, N.Y. (Brian R. Pouliot and William C. Milaccio of counsel), for respondent.
Jonathan Rosenberg, Brooklyn, NY, for appellant.
Miriam E. Rocah, District Attorney, White Plains, N.Y. (Brian R. Pouliot and William C. Milaccio of counsel), for respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Westchester County (Susan Cacace, J.), rendered October 8, 2019, convicting him of burglary in the second degree and stalking in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence supporting his convictions is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 4872, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Pearsall, 171 A.D.3d 1096, 1096, 98 N.Y.S.3d 307 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the opportunity of the finder of fact to view the witnesses, hear testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdicts of guilt were not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
Contrary to the defendant's contention, the County Court providently exercised its discretion in denying his request for a missing witness charge in relation to the victim's cousin. The proponent of a missing witness charge must demonstrate, among other things, " ‘that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case’ " ( People v. Smith, 33 N.Y.3d 454, 458–459, 104 N.Y.S.3d 572, 128 N.E.3d 649, quoting People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583 ). Here, the defendant failed to demonstrate that the victim's cousin was knowledgeable about a material issue in this case (see People v. Arcila, 177 A.D.3d 585, 587, 113 N.Y.S.3d 715 ). Additionally, the People demonstrated that any testimony that this witness could have provided would have been cumulative (see People v. Jones, 184 A.D.3d 751, 126 N.Y.S.3d 147 ; People v. Anderson, 180 A.D.3d 923, 925, 120 N.Y.S.3d 63 ).
The defendant's remaining contention is unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, without merit.
MASTRO, J.P., AUSTIN, HINDS–RADIX and CONNOLLY, JJ., concur.