People v. Dennis

300 A.D.2d 129, 750 N.Y.S.2d 760, 2002 N.Y. App. Div. LEXIS 12498

Opinion

—Judgment, Supreme Court, New York County (James Yates, J.), rendered April 30, 2001, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon in the second and third degrees, and sentencing him to concurrent terms of SVs to 25 years, 5 to 15 years and 21/3 to 7 years, respectively, unanimously affirmed.

The court properly exercised its discretion in denying defendant’s mistrial motion made on the basis of an unsolicited reference to an uncharged crime, since any possible prejudice to defendant was obviated by the court’s thorough and extensive curative instruction (see People v Santiago, 52 NY2d 865).

The court properly declined to deliver a missing witness charge (see People v Gonzalez, 68 NY2d 424). Defendant did not make a prima facie showing that the witness could provide material testimony, or that she was in the People’s control. Moreover, the People clearly established that any testimony this witness could provide would be cumulative, and defendant did not dispute the People’s showing that the witness was unavailable.

We perceive no basis for reducing the sentence. Concur— Tom, J.P., Buckley, Friedman, Marlow and Gonzalez, JJ.