Opinion
2012-05191 Ind. No. 248/07.
03-02-2016
The PEOPLE, etc., respondent, v. John BAE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Ushir Pandit of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Ushir Pandit of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered May 7, 2012, convicting him of gang assault in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court erred in denying his request for a missing witness charge is only partially preserved for appellate review since some of the specific arguments he now makes were not raised at trial (see CPL 470.052; People v. Facey, 104 A.D.3d 788, 789, 960 N.Y.S.2d 490; People v. Spinelli, 79 A.D.3d 1152, 913 N.Y.S.2d 582; People v. Lopez, 19 A.D.3d 510, 511, 798 N.Y.S.2d 473). In any event, this contention is without merit, as the defendant failed to demonstrate that the testimony of the witness in question would have been favorable to the People (see People v. Keen, 94 N.Y.2d 533, 539, 707 N.Y.S.2d 380, 728 N.E.2d 979; People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583), or that the witness was under the People's control (see People v. Smith, 71 A.D.3d 1174, 1175, 898 N.Y.S.2d 599; People v. Jacobs, 65 A.D.3d 594, 596, 884 N.Y.S.2d 656). The witness was equally available to both parties (see People v. Clas, 54 A.D.3d 770, 771, 863 N.Y.S.2d 493).
Under the circumstances of this case, including the seriousness of the crime and the defendant's subsequent arrests, the Supreme Court providently exercised its discretion in denying the defendant youthful offender treatment (see generally People v. Drayton, 39 N.Y.2d 580, 584, 385 N.Y.S.2d 1, 350 N.E.2d 377).
The defendant's remaining contention is without merit.
MASTRO, J.P., HALL, MALTESE and LaSALLE, JJ., concur.