Opinion
2002-03466
October 25, 2004.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Farneti, J.) rendered April 9, 2002, convicting him of gang assault in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence.
Before: Santucci, J.P., Adams, Mastro and Spolzino, JJ., concur.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, 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 CPL 470.15).
The prosecutor's opening statement adequately described what the People intended to prove, and properly prepared the jury to resolve the factual issues of the trial ( see CPL 260.30; People v. Kurtz, 51 NY2d 380, 384, cert denied 451 US 911; People v. Etoria, 266 AD2d 559; People v. Carter, 248 AD2d 722; People v. Vulpis, 173 AD2d 582; People v. Brown, 158 AD2d 461, cert denied 498 US 870; People v. Tzatzimakis, 150 AD2d 512; see also Matter of Timothy L., 71 NY2d 835, 837-838).
The trial court properly declined to give the jury a missing witness charge. The defendant failed to meet his burden of establishing prima facie entitlement to a missing witness charge, as there was no evidence that the uncalled witnesses had knowledge of a material issue or could provide noncumulative testimony ( see People v. Wright, 2 AD3d 546, 547; People v. Zimmerman, 309 AD2d 824; People v. Johnson, 297 AD2d 822, 823; People v. Jackson, 287 AD2d 520; People v. Herrera, 285 AD2d 613, 614; People v. Profit, 200 AD2d 639).
The defendant's contention that his conviction was the product of a compromise verdict is without merit ( see Harris v. Rivera, 454 US 339, 345-347; People v. Farrell, 190 AD2d 746, 747; People v. Alfaro, 108 AD2d 517, affd 66 NY2d 985).