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People v. Johnson

Appellate Division of the Supreme Court of New York, First Department
Apr 18, 1991
172 A.D.2d 329 (N.Y. App. Div. 1991)

Opinion

April 18, 1991

Appeal from the Supreme Court, New York County, Jerome Hornblass, J.


Defendant's conviction arises out of the July 8, 1988 street robbery of approximately $1300 from an off-duty police detective, who apprehended defendant a half block away.

The hearing court did not improperly curtail the cross-examination of the complaining witness. No abuse of discretion is perceived by the hearing court's termination of the cross-examination when the questioning proceeded far beyond the scope of the hearing and became repetitive (see, People v Sorge, 301 N.Y. 198).

At trial, defendant's application for a missing witness charge was properly denied, as there was no showing that the uncalled witness, whose identity was not known to the complaining witness or to the People, would have contradicted or added to the testimony of the other witnesses (People v. Almodovar, 62 N.Y.2d 126). Nor was there any showing that the uncalled witness was available to, or under the control of, the People (People v Gonzalez, 68 N.Y.2d 424).

Finally, defendant's claim that the sentence imposed constituted a penalty for the exercise of his right to a trial, is unsupported by the record. Pre-trial plea negotiations took into account defendant's substantial misdemeanor record and resulted in an offer by the People, and consented to by the court, of a sentence of 2 1/2 to 5 years imprisonment. The court noted that if defendant were to be convicted after trial, he faced a maximum sentence of 3 1/2 to 7 years imprisonment, which the court believed would be appropriate in light of defendant's status as a repeat larceny offender. At sentencing, the court again gave due consideration to all available facts, including the evidence in the instant case, the probation report, defendant's past conviction record, and the comments of the prosecutor, defense counsel, and defendant (People v. Farrar, 52 N.Y.2d 302). The sentence imposed does not represent an abuse of discretion in these circumstances (People v. Davis, 92 A.D.2d 177, affd 61 N.Y.2d 202).

Concur — Murphy, P.J., Milonas, Ellerin, Wallach and Kassal, JJ.


Summaries of

People v. Johnson

Appellate Division of the Supreme Court of New York, First Department
Apr 18, 1991
172 A.D.2d 329 (N.Y. App. Div. 1991)
Case details for

People v. Johnson

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TONY JOHNSON, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 18, 1991

Citations

172 A.D.2d 329 (N.Y. App. Div. 1991)
568 N.Y.S.2d 611