Opinion
2003-06103.
May 23, 2005.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered July 9, 2003, convicting him of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Before: Schmidt, J.P., Adams, Luciano and Rivera, JJ., concur.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the trial court properly denied his request for a missing witness charge ( see People v. Savinon, 100 NY2d 192, 197-198). The People demonstrated that the three witnesses were unavailable by their diligent, yet unsuccessful, efforts to locate them ( see People v. Gonzalez, 68 NY2d 424, 427; People v. Flowers, 275 AD2d 329, 330). Moreover, the defendant failed to establish that the witness Damian Daley was knowledgeable about a material issue in the case ( see People v. Savinon, supra).
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 People v. Acosta, 80 NY2d 665, 672; People v. Bleakley, 69 NY2d 490, 495; CPL 470.15). Contrary to the defendant's contention, the complainant's detailed description of the shooting demonstrated that he could properly identify the defendant, whom he met two days earlier, since the shooting occurred at close range under a streetlight. The complainant described how the defendant and the codefendant both drew firearms, and that multiple shots were fired at him, causing him to sustain multiple gunshot wounds. Ballistics evidence recovered from the scene and the medical evidence of his life-threatening injuries were consistent with the complainant's version of events.