Opinion
No. 570251/11.
2014-08-8
PEOPLE of the State of New York, Respondent, v. Candido VALDEZ, Defendant–Appellant.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Matthew A. Sciarrino, Jr., J.), rendered February 17, 2011, after a nonjury trial, convicting him of attempted assault in the third degree, harassment in the second degree, and disorderly conduct, and imposing sentence.
Present: LOWE, III, P.J., SCHOENFELD, SHULMAN, JJ. PER CURIAM.
Judgment of conviction (Matthew A. Sciarrino, Jr., J.), rendered February 17, 2011, affirmed.
Defendant's present challenge to the court's ruling on his request for a missing witness inference is unpreserved, since he failed to object to or seek clarification of the ruling ( see CPL 470.05[2]; People v. Robinson, 36 N.Y.2d 224, 228 [1975], remittitur amended 37 N.Y.2d 784 [1975] ), and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal. Although it would have been better practice for the court to have issued a more definitive ruling squarely addressing defendant's missing witness request, any error in this regard did not deprive defendant of a fair trial. To the extent the court's statement that it “will permit itself, if it so chooses, to [draw] such an inference if it deems appropriate,” can fairly be interpreted as an outright denial of defendant's request ( see generally CPL 300.10[50]; People v. Gonzalez, 68 N.Y.2d 424, 431 [1986] [inference that a trier of fact may draw from a missing witness charge is permissive, not mandatory] ), the denial was a proper exercise of discretion, since the non-testifying victim, defendant's father, “was unavailable based upon [his] refusal to testify ... and was not under the control of the People such that [he] could be expected to give testimony favorable to the prosecution” ( see People v. Hernandez, 256 A.D.2d 18, 19 [1998], lv denied 93 N.Y.2d 874 [1999], quoting People v. Rivera, 234 A.D.2d 19, 20 [1996], lv denied 89 N.Y.2d 1040 [1997]; see People v. Royster, 18 AD3d 375, 375–376 [2005], lv denied 5 NY3d 794 [2005] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.