Summary
missing witness charge properly denied where "People established that, despite reasonably diligent efforts, they were unable to find" victim
Summary of this case from Castro v. FisherOpinion
3330.
Decided April 8, 2004.
Judgment, Supreme Court, New York County (John Bradley, J.), rendered February 11, 1998, convicting defendant, after a jury trial, of assault in the first and second degrees, and sentencing him, as a persistent violent felony offender, to concurrent terms of 25 years to life and 12 years to life, respectively, unanimously affirmed.
David M. Cohn, for Respondent.
Richard Joselson, for Defendant-Appellant.
Before: Nardelli, J.P., Sullivan, Williams, Friedman, Marlow, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Moreover, we find the evidence of defendant's guilt to be overwhelming. There is no basis for disturbing the jury's determinations concerning credibility. Although the victim did not testify, there was a lengthy chain of circumstantial proof connecting defendant with the assault, including, among many other things, a statement by defendant that was a virtual admission of guilt when viewed in context. The only rational inference that could be drawn from the evidence is that defendant was the attacker ( see People v. Bierenbaum, 301 A.D.2d 119, 131-140, lv denied 99 N.Y.2d 626, cert denied US, 124 S Ct 134). Furthermore, the medical evidence fully supported the element of serious physical injury ( see Penal Law § 10.00; People v. McDuffie, 293 A.D.2d 287, lv denied 98 N.Y.2d 699; People v. Perron, 172 A.D.2d 879, lv denied 77 N.Y.2d 999).
The court properly denied defendant's request to submit assault in the third degree as a lesser included offense of assault in the first degree, since there was no reasonable view of the evidence to support that charge ( see People v. Franco, 271 A.D.2d 383, lv denied 95 N.Y.2d 865).
The court properly denied defendant's request for a missing witness charge with respect to the victim because the People established that, despite reasonably diligent efforts, they were unable to find him ( see People v. Skaar, 225 A.D.2d 824, 824-825, lv denied 88 N.Y.2d 854). The People demonstrated a "genuine inability to locate [the] witness" ( People v. Savinon, 100 N.Y.2d 192, 198), and that additional efforts to search for him would be unreasonably burdensome or exercises in futility.
We perceive no basis for reducing the sentence.
We have considered and rejected defendant's remaining claims.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.