Opinion
2014–00560 Ind.No. 3354/11
05-23-2018
The PEOPLE, etc., respondent, v. Kerryl JOSEPH, appellant.
Paul Skip Laisure, New York, N.Y. (Steven R. Bernhard and William Kastin of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph Ferdenzi, Aurora Alvarez–Calderon, and Danielle O'Boyle of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Steven R. Bernhard and William Kastin of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph Ferdenzi, Aurora Alvarez–Calderon, and Danielle O'Boyle of counsel), for respondent.
SHERI S. ROMAN, J.P., HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Queens County (Robert Charles Kohm, J.), rendered January 8, 2014, convicting him of gang assault in the first degree, assault in the first degree (four counts), and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the Supreme Court erred in denying his application for a missing witness charge. The defendant's application, however, was untimely, as it was made well after both sides had rested (see People v. Whitlock, 95 A.D.3d 909, 910–911, 943 N.Y.S.2d 227 ; People v. Sealy, 35 A.D.3d 510, 826 N.Y.S.2d 358 ). In any event, the court properly denied his request for a missing witness charge based on its finding that the witness was not available to the People to testify at trial (see People v. Womack, 143 A.D.3d 1171, 41 N.Y.S.3d 302 ; People v. Fitzgerald, 84 A.D.3d 1397, 1398, 924 N.Y.S.2d 289 ).
The defendant's contention that the evidence was legally insufficient to support his conviction of gang assault in the first degree is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Marquez, 298 A.D.2d 407, 408, 751 N.Y.S.2d 251 ). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to that crime was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.