Opinion
KA 00-02693
March 21, 2003.
Appeal from a judgment of Supreme Court, Erie County (Rossetti, J.), entered March 2, 2000, convicting defendant after a jury trial of, inter alia, assault in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (JOSEPH KILBRIDGE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting her following a jury trial of assault in the first degree (Penal Law § 120.10) and criminal possession of a weapon in the fourth degree (§ 265.01 [2]). The charges stemmed from defendant's slashing the victim several times with a sharp instrument in a bar. The victim testified that she was attacked by defendant and felt pain; although she did not see the weapon that was used, the victim immediately felt blood streaming down her face. Another witness at the bar saw the silver tip of something resembling a razor in defendant's hand, and the bouncer employed by the bar later found a razor blade on the floor in the area of the attack. Contrary to defendant's contention, Supreme Court properly declined to give a missing witness charge with respect to the man who had accompanied the victim to the bar and was sitting next to her. The People established that the whereabouts of the witness were unknown and that diligent efforts to locate him had been unsuccessful (see People v. Gonzalez, 68 N.Y.2d 424, 428; People v. Whetstone, 130 A.D.2d 969, lv denied 70 N.Y.2d 718). Contrary to defendant's further contention, the conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495). Finally, the sentence is neither unduly harsh nor severe.