Opinion
March 30, 1993
Appeal from the Family Court, New York County (Leah Ruth Marks, J., Judith Sheindlin, J.).
The incidents underlying these proceedings occurred on the same night and involved appellant's alleged attempts to rob a woman in a subway station and a man on a subway train.
Viewing the evidence in the light most favorable to the presentment agency and giving it the benefit of every reasonable inference (People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), the evidence is sufficient as a matter of law to prove that appellant attempted to rob the woman in the subway station. Prior to the incident, the complainant had several opportunities to observe appellant, first at close range when he asked her for directions, then moments later when he was playing on the subway tracks, and again when he and his companions were singing and dancing. During the incident, the complainant viewed appellant face-to-face under a fluorescent light when he demanded money from her while holding a blade-like object. And, after the incident, minutes before appellant was arrested, the complainant observed him for approximately five minutes when he and his companions walked toward the front of the subway. Any questions with respect to the discrepancies between the complainant's identification testimony and the statement she made to the police merely presented an issue of fact for the court to assess in determining her credibility (Matter of Michael N., 181 A.D.2d 531).
Nor was appellant entitled to a missing witness inference because the presentment agency did not call the man he allegedly attempted to rob on the subway train. Evidence offered by the presentment agency showing that the man was homeless and that efforts to contact him by telephone were unsuccessful demonstrated his unavailability as a witness (see, People v Gonzalez, 68 N.Y.2d 424, 428).
Concur — Murphy, P.J., Milonas, Ross and Asch, JJ.