People v. Bryant

11 A.D.3d 630, 784 N.Y.S.2d 114, 2004 N.Y. App. Div. LEXIS 12139

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered April 3, 2001, convicting him of attempted murder in the second degree, attempted assault in the first degree, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the trial court properly denied his request for a missing witness charge with respect to an individual who witnessed one of the shooting incidents. Although the uncalled witness was related to both complainants, the court’s determination that he was not under the People’s control is supported by evidence of his failure to cooperate with the police investigation into the shootings (see People v Porter, 268 AD2d 538 [2000]). Moreover, the investigating detective’s testimony that he made 9 or 10 unsuccessful attempts to locate the uncalled witness also established that the witness was unavailable to testify (see People v Foster, 235 AD2d 490 [1997]; People v Aguirre, 201 AD2d 485 [1994]; People v Morgan, 177 AD2d 655 [1991]). H. Miller, J.P., S. Miller, Krausman and Goldstein, JJ., concur.