From Casetext: Smarter Legal Research

People v. Timoney

Appellate Division of the Supreme Court of New York, Second Department
Jun 27, 1988
141 A.D.2d 876 (N.Y. App. Div. 1988)

Opinion

June 27, 1988

Appeal from the Supreme Court, Queens County (Clabby, J.).


Ordered that the judgment is affirmed.

The defendant contends that he was deprived of a fair trial by reason of the bias of the trial court as evidenced by remarks made by the court concerning the defendant's failure to appear after the close of the People's case. We find, however, to the contrary. The proceedings were conducted in a manner which showed a careful regard for the rights of the defendant. None of the remarks made by the court was unwarranted under the circumstances. Further, these remarks were made at the time of sentencing and were innocuous.

We also find no merit in the contention that the trial court should have drawn an unfavorable inference with respect to the failure of the People to call an eyewitness whom they had initially stated they would be calling. The burden is on the party seeking the benefit of an unfavorable inference to make a timely request to the court for such an inference (People v Gonzalez, 68 N.Y.2d 424). There is no evidence of any request being made by the defense in the case at bar. Moreover, the witness was a stranger to both parties, was equally available to both parties, and there was no evidence that she was favorable to or under the control of one party and hostile to the other (People v Mendez, 138 A.D.2d 637).

Viewing the evidence in the light most favorable to the People, we conclude that it was legally sufficient to establish the defendant's guilt (see, People v Contes, 60 N.Y.2d 620). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15). Brown, J.P., Kunzeman, Rubin and Kooper, JJ., concur.


Summaries of

People v. Timoney

Appellate Division of the Supreme Court of New York, Second Department
Jun 27, 1988
141 A.D.2d 876 (N.Y. App. Div. 1988)
Case details for

People v. Timoney

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM TIMONEY…

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

Date published: Jun 27, 1988

Citations

141 A.D.2d 876 (N.Y. App. Div. 1988)

Citing Cases

People v. Webb

Ordered that the judgment is affirmed. Contrary to the defendant's contention, the Supreme Court properly…

Follett v. Thompson

Although the plaintiff was aware before trial, both of the existence of the uncalled witness and the…