Opinion
1999-11161
Argued December 18, 2001
January 14, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (West, J.), rendered November 5, 1999, convicting him of manslaughter in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Stephen J. Pittari, White Plains, N.Y. (Jacqueline F. Oliva of counsel), for appellant.
Jeanine Pirro, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Richard Longworth Hecht of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., THOMAS A. ADAMS, SANDRA L. TOWNES, A. GAIL PRUDENTI, JJ.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish that he acted recklessly in causing the death of the victim is unpreserved for appellate review (see, CPL 470.05; People v. Finger, 95 N.Y.2d 894). In any event, viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of manslaughter in the second degree beyond a reasonable doubt (see, People v. Keefer, 197 A.D.2d 915, 916). 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 (see, CPL 470.15).
Contrary to the defendant's contention, the trial court properly denied his request for a missing witness charge since he failed to make a prima facie showing that the witness would be expected to testify favorably for the People in their case against him (see, People v. Gonzalez, 68 N.Y.2d 424, 427; People v. Smith, 265 A.D.2d 235, 236). Even if the defendant had made such a prima facie showing, the People demonstrated that the witness was not under their control (see, People v. Nasario, 258 A.D.2d 599, 600).
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
ALTMAN, J.P., ADAMS, TOWNES and PRUDENTI, JJ., concur.