People v. McCune

14 Citing cases

  1. People v. Estela

    2017 N.Y. Slip Op. 5238 (N.Y. App. Div. 2017)

    The Supreme Court erred in denying the defendant's request for a missing witness charge. In opposition to the defendant's prima facie showing that the uncalled witness would be expected to testify favorably for the prosecution, would be knowledgeable about a material issue in the case, and was under the People's control (see People v Edwards, 14 NY3d 733, 735; People v Savinon, 100 NY2d 192, 200; People v Badine, 301 AD2d 178), the People failed to account for the witness's absence or otherwise demonstrate that the charge would not be appropriate (see People v Gonzalez, 68 NY2d 424, 428). Nevertheless, the error was harmless under the circumstances of this case, as there was overwhelming evidence of the defendant's guilt and no significant probability that the error contributed to his conviction (see People v Wofford, 115 AD3d 1332, 1333; People v McCune, 210 AD2d 978, 979; see generally People v Crimmins, 36 NY2d 230, 241-242). The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

  2. People v. Estela

    151 A.D.3d 1075 (N.Y. App. Div. 2017)   Cited 1 times

    eme Court erred in denying the defendant's request for a missing witness charge. In opposition to the defendant's prima facie showing that the uncalled witness would be expected to testify favorably for the prosecution, would be knowledgeable about a material issue in the case, and was under the People's control (see People v. Edwards, 14 N.Y.3d 733, 735, 899 N.Y.S.2d 65, 925 N.E.2d 867 ; People v. Savinon, 100 N.Y.2d 192, 200, 761 N.Y.S.2d 144, 791 N.E.2d 401 ; People v. Badine, 301 A.D.2d 178, 752 N.Y.S.2d 679 ), the People failed to account for the witness's absence or otherwise demonstrate that the charge would not be appropriate (see People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583 ). Nevertheless, the error was harmless under the circumstances of this case, as there was overwhelming evidence of the defendant's guilt and no significant probability that the error contributed to his conviction (see People v. Wofford, 115 A.D.3d 1332, 1333, 982 N.Y.S.2d 666 ; People v. McCune, 210 A.D.2d 978, 979, 621 N.Y.S.2d 246 ; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

  3. People v. Fraser

    134 A.D.3d 734 (N.Y. App. Div. 2015)   Cited 7 times

    urt erred, however, in denying the defendant's request for a missing witness charge. In opposition to the defendant's prima facie showing that the uncalled witness could have been expected to testify favorably to the People, that he was knowledgeable about a material issue in the case, and that he was in the People's control (see People v. Edwards, 14 N.Y.3d 733, 735, 899 N.Y.S.2d 65, 925 N.E.2d 867 ; People v. Savinon, 100 N.Y.2d 192, 200, 761 N.Y.S.2d 144, 791 N.E.2d 401 ; People v. Gonzalez, 68 N.Y.2d 424, 427–429, 509 N.Y.S.2d 796, 502 N.E.2d 583 ), the People failed to "account for the witness'[s] absence or otherwise demonstrate that the charge would not be appropriate" (People v. Gonzalez, 68 N.Y.2d at 428, 509 N.Y.S.2d 796, 502 N.E.2d 583 ). Nevertheless, the error was harmless, as there was overwhelming evidence of the defendant's guilt and no significant probability that the error contributed to his conviction (see People v. Wofford, 115 A.D.3d 1332, 1333, 982 N.Y.S.2d 666 ; People v. McCune, 210 A.D.2d 978, 979, 621 N.Y.S.2d 246 ; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).The defendant's contention concerning an alleged Brady violation (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ) is unpreserved for appellate review and, in any event, without merit.

  4. People v. Fraser

    2015 N.Y. Slip Op. 8856 (N.Y. App. Div. 2015)

    In opposition to the defendant's prima facie showing that the uncalled witness could have been expected to testify favorably to the People, that he was knowledgeable about a material issue in the case, and that he was in the People's control (see People v Edwards, 14 NY3d 733, 735; People v Savinon, 100 NY2d 192, 200; People v Gonzalez, 68 NY2d 424, 427-429), the People failed to "account for the witness'[s] absence or otherwise demonstrate that the charge would not be appropriate" (People v Gonzalez, 68 NY2d at 428). Nevertheless, the error was harmless, as there was overwhelming evidence of the defendant's guilt and no significant probability that the error contributed to his conviction (see People v Wofford, 115 AD3d 1332, 1333; People v McCune, 210 AD2d 978, 979; see generally People v Crimmins, 36 NY2d 230, 241-242). The defendant's contention concerning an alleged Brady violation (see Brady v Maryland, 373 US 83) is unpreserved for appellate review and, in any event, without merit.

  5. People v. Cooper

    128 A.D.3d 1431 (N.Y. App. Div. 2015)   Cited 10 times

    294 A.D.2d 298, 298–299, 742 N.Y.S.2d 537, lv. denied 98 N.Y.2d 772, 752 N.Y.S.2d 13, 781 N.E.2d 925; People v. Sloane, 262 A.D.2d 431, 432, 693 N.Y.S.2d 52, lv. denied 93 N.Y.2d 1027, 697 N.Y.S.2d 586, 719 N.E.2d 947). Defendant failed to preserve for our review his contention in both appeals that the court erred in failing to specify the offenses it would consider in rendering a verdict ( see People v. Mitchell, 254 A.D.2d 830, 831, 679 N.Y.S.2d 761, lv. denied 92 N.Y.2d 984, 683 N.Y.S.2d 765, 706 N.E.2d 753). “In any event, the court's failure to comply with CPL 320.20(5) is harmless error inasmuch as defendant was convicted of offenses charged in the indictment, not lesser included offenses” ( id.; see People v. Wright, 16 A.D.3d 982, 983, 792 N.Y.S.2d 256, lv. denied 4 N.Y.3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982). Finally, we reject defendant's contention in appeal No. 2 that the court abused its discretion in consolidating the indictments and denying his motion to sever ( see People v. McCune, 210 A.D.2d 978, 978–979, 621 N.Y.S.2d 246, lv. denied 85 N.Y.2d 864, 624 N.Y.S.2d 383, 648 N.E.2d 803). Although based upon different criminal transactions, the offenses are the “same or similar in law” (CPL 200.20[2][c] ), and defendant failed to make a convincing showing that he had important testimony to give on one count and a genuine need to refrain from testifying on others ( see People v. Burrows, 280 A.D.2d 132, 133–134, 722 N.Y.S.2d 675, lv. denied 96 N.Y.2d 826, 729 N.Y.S.2d 446, 754 N.E.2d 206). It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

  6. People v. Cooper

    2015 N.Y. Slip Op. 3953 (N.Y. App. Div. 2015)

    peals, the court properly determined that he forfeited his right to counsel by his persistent course of egregious conduct toward successive assigned counsel, consisting of threats and other abusive behavior (see People v Wilkerson, 294 AD2d 298, 298-299, lv denied 98 NY2d 772; People v Sloane, 262 AD2d 431, 432, lv denied 93 NY2d 1027). Defendant failed to preserve for our review his contention in both appeals that the court erred in failing to specify the offenses it would consider in rendering a verdict (see People v Mitchell, 254 AD2d 830, 831, lv denied 92 NY2d 984). "In any event, the court's failure to comply with CPL 320.20 (5) is harmless error inasmuch as defendant was convicted of offenses charged in the indictment, not lesser included offenses" (id.; see People v Wright, 16 AD3d 982, 983, lv denied 4 NY3d 892). Finally, we reject defendant's contention in appeal No. 2 that the court abused its discretion in consolidating the indictments and denying his motion to sever (see People v McCune, 210 AD2d 978, 978-979, lv denied 85 NY2d 864). Although based upon different criminal transactions, the offenses are the "same or similar in law" (CPL 200.20 [2] [c]), and defendant failed to make a convincing showing that he had important testimony to give on one count and a genuine need to refrain from testifying on others (see People v Burrows, 280 AD2d 132, 133-134, lv denied 96 NY2d 826). Entered: May 8, 2015

  7. People v. Wofford

    115 A.D.3d 1332 (N.Y. App. Div. 2014)   Cited 11 times

    The testimony of a third officer involved in the police chase would have been cumulative ( see People v. Santiago, 101 A.D.3d 1715, 1717, 957 N.Y.S.2d 535,lv. denied21 N.Y.3d 946, 968 N.Y.S.2d 9, 990 N.E.2d 143;People v. Duda, 45 A.D.3d 1464, 1466, 845 N.Y.S.2d 671,lv. denied10 N.Y.3d 764, 854 N.Y.S.2d 326, 883 N.E.2d 1261;see generally People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583). In any event, any error in failing to give that charge is harmless inasmuch as the evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the alleged error ( see People v. McCune, 210 A.D.2d 978, 979, 621 N.Y.S.2d 246,lv. denied85 N.Y.2d 864, 624 N.Y.S.2d 383, 648 N.E.2d 803;see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787). Finally, the sentence is not unduly harsh or severe. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

  8. People v. Wright

    300 A.D.2d 191 (N.Y. App. Div. 2002)   Cited 5 times

    In opposing the People's motion, defendant's efforts to show that he had important testimony to give concerning the second indictment and a strong need to refrain from testifying as to the first indictment were conclusory and unconvincing (see People v. Lane, 56 N.Y.2d 1; People v. Anderson, 118 A.D.2d 788, 789-790, lv denied 67 N.Y.2d 1050, cert denied 479 U.S. 859). In any event, defendant was not prejudiced by the consolidation since his proposed defense against the second indictment would have opened the door to evidence of the crimes charged in the first indictment (see People v. McCune, 210 A.D.2d 978, lv denied 85 N.Y.2d 864; see also People v. Hudson, 273 A.D.2d 83, lv denied 95 N.Y.2d 890). We also note that, during the consolidated trial, defendant did not testify, and that defense counsel specifically explained that this was primarily because of the court's Sandoval ruling (which is not challenged on appeal).

  9. People v. Hernandez

    295 A.D.2d 989 (N.Y. App. Div. 2002)   Cited 10 times

    Certain of the offenses were properly joinable pursuant to CPL 200.20 (2) (b) ( see People v. Cruz, 278 A.D.2d 125, 125). The remaining offenses were joinable pursuant to CPL 200.20 (2) (c), and defendant failed to establish good cause for discretionary severance ( see Cruz, 278 A.D.2d at 125; People v. Bruce, 216 A.D.2d 913, 913-914, lv denied 86 N.Y.2d 872; People v. McCune, 210 A.D.2d 978, 978-979, lv denied 85 N.Y.2d 864). Defense counsel's failure to call a witness at trial does not, by itself, constitute ineffective assistance of counsel. Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received effective assistance of counsel ( see People v.Baldi, 54 N.Y.2d 137, 147).

  10. People v. Hayes

    261 A.D.2d 872 (N.Y. App. Div. 1999)   Cited 8 times

    That request was untimely ( see, People v. Gonzalez, 68 N.Y.2d 424, 427-428; People v. Castro-Garcia, 203 A.D.2d 899, lv denied 83 N.Y.2d 965). Furthermore, defendant failed to establish that the witness would provide noncumulative testimony favorable to the People regarding a material issue ( see, People v. Kitching, 78 N.Y.2d 532, 536; People v. Gonzalez, supra, at 427). In any event, any error is harmless ( see, People v. Crimmins, 36 N.Y.2d 230, 241-242; People v. McCune, 210 A.D.2d 978, 979, lv denied 85 N.Y.2d 864). Despite the overwhelming evidence of guilt, defense counsel presented a credible defense that resulted in the dismissal of two charges. Thus, the contention that defendant received ineffective assistance of counsel lacks merit ( see, People v. Baldi, 54 N.Y.2d 137, 147). Finally, considering the heinous nature of defendant's conduct and extensive criminal record, the court did not abuse its discretion in imposing the maximum permissible sentence.