Opinion
November 18, 1991
Appeal from the Supreme Court, Queens County (Leahy, J.).
Ordered that the judgment is modified, on the law, by providing that the terms of imprisonment imposed for murder in the second degree shall be served concurrently with the term of imprisonment imposed for the robbery in the first degree; as so modified, the judgment is affirmed.
The defendant contends in his supplemental pro se brief that the trial court erred when it refused to deliver a "missing witness charge" to the jury based on the People's failure to call a certain witness. We find that the court properly declined to deliver such a charge because the police were unaware of the witness's whereabouts at the time of the trial despite their reasonable efforts to locate him. Hence, the witness was not "available to" the People (see, People v. Gonzalez, 68 N.Y.2d 424, 427-428).
Contrary to the defendant's contentions, the trial court properly admitted into evidence two photographs of the deceased at the scene of the crime. These photographs had probative value in that they showed that the victim's gun was in its holster at the time of death (thereby demonstrating that he was not shot in self-defense) and they corroborated and illustrated the trial testimony (see, People v. Stevens, 76 N.Y.2d 833, 835; People v Pride, 173 A.D.2d 651).
The sentencing court erred in directing that the term of imprisonment imposed for robbery in the first degree should run consecutively to the term of imprisonment imposed for felony murder (see, Penal Law § 70.25; People v. Jones, 69 A.D.2d 824). Under the facts of this case, the sentencing court also erred in directing that the term of imprisonment imposed for robbery in the first degree should run consecutively to the term of imprisonment imposed for intentional murder, since the robbery was not completed until after the victim had been shot four times and, therefore, these convictions were essentially based upon the same acts (see, People v. Esquilin, 159 A.D.2d 632, 634).
We have considered the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find that they are unpreserved for appellate review, without merit, or do not warrant reversal of the judgment of conviction. Mangano, P.J., Harwood, Eiber and O'Brien, JJ., concur.