Opinion
12092 Ind. No. 2777/10 Case No. 2016-940
10-15-2020
The PEOPLE of the State of New York, Respondent, v. Pedro SILVESTRE, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen of counsel), for respondent.
Friedman, J.P., Manzanet–Daniels, Kern, Moulton, JJ.
Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered November 12, 2013, convicting defendant, after a jury trial, of two counts each of criminal sale of a controlled substance in the first and second degrees, and sentencing him to an aggregate term of 10 years, unanimously affirmed.
The court providently exercised its discretion in denying as untimely defendant's request for a missing witness charge as to a confidential informant. Defendant made the request long after both sides had rested, and more than a month after the People's pretrial announcement that they were not going to call the witness (see People v. Carr, 14 N.Y.3d 808, 899 N.Y.S.2d 746, 926 N.E.2d 253 [2010] ; People v. Torres, 169 A.D.3d 506, 94 N.Y.S.3d 42 [2019], lv denied 33 N.Y.3d 981, 101 N.Y.S.3d 275, 124 N.E.3d 764 [2019] ). In any event, assuming that defendant met his initial burden, the People met their burden of showing that the witness's testimony would have been cumulative (see People v. Smith, 33 N.Y.3d 454, 458–59, 104 N.Y.S.3d 572, 128 N.E.3d 649 [2019] ), and the court properly denied the instruction on that basis as well.