Opinion
2015-01564, Ind. No. 1468/13.
11-15-2017
The PEOPLE, etc., Respondent, v. Timothy T. ALSTON, Appellant.
Raiser & Kenniff, P.C., New York, NY (Thomas A. Kenniff of Counsel), for appellant. Madeline Singas, District Attorney, Mineola, NY (Laurie K. Gibbons and W. Thomas Hughes of Counsel), for respondent.
Raiser & Kenniff, P.C., New York, NY (Thomas A. Kenniff of Counsel), for appellant.
Madeline Singas, District Attorney, Mineola, NY (Laurie K. Gibbons and W. Thomas Hughes of Counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered February 9, 2015, convicting him of criminal possession of a weapon in the second degree (two counts) and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt of reckless endangerment in the first degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant contends that the trial court erred in refusing to give a missing witness charge for three witnesses. "[A] party seeking [a] missing witness charge must sustain an initial burden of showing that the opposing party has failed to call a witness who could be expected to have knowledge regarding a material issue in the case and to provide testimony favorable to the opposing party" ( People v. Macana, 84 N.Y.2d 173, 177, 615 N.Y.S.2d 656, 639 N.E.2d 13 ; see People v. Kitching,
78 N.Y.2d 532, 536, 577 N.Y.S.2d 231, 583 N.E.2d 944 ; People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583 ). Once the party seeking the charge has met this initial burden, " ‘it becomes incumbent upon the opposing party, in order to defeat the request to charge, to account for the witness' absence or otherwise demonstrate that the charge would not be appropriate,’ " such as, among other things, by demonstrating that "the witness is not ‘available’ " ( People v. Kitching, 78 N.Y.2d at 537, 577 N.Y.S.2d 231, 583 N.E.2d 944, quoting People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583 ).
Here, although the defendant met his initial burden with respect to the complainant's boyfriend, the People demonstrated, by producing the boyfriend, who indicated his intention to invoke his Fifth Amendment privilege against self-incrimination if questioned, that the witness was unavailable (see People v. Webster, 248 A.D.2d 738, 738–739, 670 N.Y.S.2d 871 ; cf. People v. Macana, 84 N.Y.2d at 177–179, 615 N.Y.S.2d 656, 639 N.E.2d 13 ). With respect to the remaining two witnesses, acquaintances of the complainant, the defendant failed to meet his burden of demonstrating that they were within the People's control (see People v. Brown, 75 A.D.3d 515, 516, 904 N.Y.S.2d 752 ; People v. Rawls, 65 A.D.3d 978, 979, 885 N.Y.S.2d 417 ; cf. People v. Gonzalez, 68 N.Y.2d at 429–430, 509 N.Y.S.2d 796, 502 N.E.2d 583 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.
MASTRO, J.P., SGROI, COHEN and MALTESE, JJ., concur.