People v. Calderon

Appellate Division of the Supreme Court of New York

People v. Calderon

284 A.D.2d 942, 725 N.Y.S.2d 909, 2001 N.Y. App. Div. LEXIS 5943

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 8, 2001

StatusPublished

This text of 284 A.D.2d 942 (People v. Calderon) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Calderon, 284 A.D.2d 942, 725 N.Y.S.2d 909, 2001 N.Y. App. Div. LEXIS 5943 (N.Y. Ct. App. 2001).

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Opinion

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of criminal possession of a weapon in the second degree (Penal Law former § 265.03) and criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]), defendant’s sole contention is that County Court erred in refusing to give a missing witness charge. We reject that contention. The record supports the court’s conclusion that the account of the nontestifying witness would have been cumulative to that of the two eyewitnesses who testified for the prosecution (see, People v Macana, 84 NY2d 173, 180; People v Ortiz, 83 NY2d 989, 990-991; People v Blake, 278 AD2d 887; People v Early, 266 AD2d 881, 881-882, lv denied 94 NY2d 918). “There is nothing in the record to indicate that the missing [witness] would have testified differently [from the other [943]*943prosecution witnesses] or in accordance with defendant’s claim” (People v Macana, supra, at 180; see also, People v Buckler, 39 NY2d 895, 897). (Appeal from Judgment of Monroe County Court, Marks, J. — Criminal Possession Weapon, 2nd Degree.) Present — Green, J. P., Pine, Hurlbutt, Kehoe and Burns, JJ.

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—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of criminal possession of a weapon in the second degree (Penal Law former § 265.03) and criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]), defendant’s sole contention is that County Court erred in refusing to give a missing witness charge. We reject that contention. The record supports the court’s conclusion that the account of the nontestifying witness would have been cumulative to that of the two eyewitnesses who testified for the prosecution (see, People v Macana, 84 NY2d 173, 180; People v Ortiz, 83 NY2d 989, 990-991; People v Blake, 278 AD2d 887; People v Early, 266 AD2d 881, 881-882, lv denied 94 NY2d 918). “There is nothing in the record to indicate that the missing [witness] would have testified differently [from the other [943]*943prosecution witnesses] or in accordance with defendant’s claim” (People v Macana, supra, at 180; see also, People v Buckler, 39 NY2d 895, 897). (Appeal from Judgment of Monroe County Court, Marks, J. — Criminal Possession Weapon, 2nd Degree.) Present — Green, J. P., Pine, Hurlbutt, Kehoe and Burns, JJ.

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Bluebook (online)

284 A.D.2d 942, 725 N.Y.S.2d 909, 2001 N.Y. App. Div. LEXIS 5943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-calderon-nyappdiv-2001.

Opinion

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