People v. Vera

Oct 25, 2004
Versions:11 A.D.3d 716
784 N.Y.S.2d 562
2004 N.Y. App. Div. LEXIS 12542

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.

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 [1983]), 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 [5]).

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 [3]; People v Kurtz, 51 NY2d 380, 384 [1980], cert denied 451 US 911 [1981]; People v Etoria, 266 AD2d 559 [1999]; People v Carter, 248 AD2d 722 [1998]; People v Vulpis, 173 AD2d 582 [1991]; People v Brown, 158 AD2d 461 [1990], cert denied 498 US 870 [1990]; People v Tzatzimakis, 150 AD2d 512 [1989]; see also Matter of Timothy L., 71 NY2d 835, 837-838 [1988]).

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 [2003]; People v Zimmerman, 309 AD2d 824 [2003]; People v Johnson, 297 AD2d 822, 823 [2002]; People v Jackson, 287 AD2d 520 [2001]; People v Herrera, 285 AD2d 613, 614 [2001]; People v Profit, 200 AD2d 639 [1994]).

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 [1981]; People v Farrell, 190 AD2d 746, 747 [1993]; People v Alfaro, 108 AD2d 517 [1985], affd 66 NY2d 985 [1985]). Santucci, J.P., Adams, Mastro and Spolzino, JJ., concur.