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People v. Abelson

Appellate Division of the Supreme Court of New York, First Department
Mar 16, 2006
27 A.D.3d 301 (N.Y. App. Div. 2006)

Opinion

8104, 8105.

March 16, 2006.

Judgment, Supreme Court, New York County (Herbert Altman, J., at jury trial and sentence; Maxwell Wiley, J., at resentence), rendered October 24, 2002, as amended March 14, 2005, convicting defendant of robbery in the second degree (two counts) and attempted grand larceny in the second degree, and sentencing him to concurrent terms of 5 years, 5 years and 2 1/3 to 7 years, respectively, unanimously affirmed.

Laura R. Johnson, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Eric Rosen of counsel), for respondent.

Before: Andrias, J.P., Saxe, Friedman, Marlow and Sullivan, JJ., concur.


The court properly denied defendant's request for a missing witness charge as to the victim's former girlfriend. The court correctly concluded that this witness was not under the People's control for purposes of a missing witness charge ( see People v. Gonzalez, 68 NY2d 424, 428-429; compare People v. Keen, 94 NY2d 533, 539-540). The victim's brief relationship with the witness ended long before the trial, and he had not heard from her for several months. In addition, the People sufficiently established that this witness, a prostitute living at an unknown location in Italy, was not available, in that efforts to locate her would have been futile ( see e.g. People v. Delacruz, 276 AD2d 387, lv denied 96 NY2d 758). In any event, were we to find any error in failing to give the missing witness charge, we would find the error to be harmless in light of the overwhelming evidence of defendant's guilt.

We perceive no basis for reducing the sentence.


Summaries of

People v. Abelson

Appellate Division of the Supreme Court of New York, First Department
Mar 16, 2006
27 A.D.3d 301 (N.Y. App. Div. 2006)
Case details for

People v. Abelson

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. IAN ABELSON, Appellant

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

Date published: Mar 16, 2006

Citations

27 A.D.3d 301 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 1906
812 N.Y.S.2d 47

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