People v. Duc

194 A.D.2d 406, 598 N.Y.S.2d 528, 1993 N.Y. App. Div. LEXIS 6182

Opinion

—Judgment, Supreme Court, New York County (Juanita Bing Newton, J.), rendered December 16, 1991, convicting defendant, after a jury trial, of three counts of robbery in the first degree and three counts of robbery in the second degree, and sentencing him to concurrent terms of 3 to 9 years on the robbery first degree counts, and IV2 to 4A years on the robbery second degree counts, unanimously affirmed.

The jury verdict is supported by both the sufficiency and the weight of the credible evidence (People v Bleakley, 69 NY2d 490, 495). Credibility is an issue for the trier of fact to decide (People v Malizia, 62 NY2d 755, 757, cert denied 469 US 932).

Contrary to defendant’s assertion, the exercise of the court’s discretion to refuse to furnish a missing witness charge with respect to the victim’s elderly father was not error. Since the absent witness had indicated that he kept his head down at gunpoint during the robbery, defendant was not entitled to a missing witness charge (People v Gonzalez, 68 NY2d 424). Defendant’s participation in the crime, rather than his identification, was the key issue placed before the jury. Thus, the absent witness’s limited account, that four men entered the store, would not have been non-cumulative (cf., People v Kitching, 78 NY2d 532). Concur—Murphy, P. J., Sullivan, Milonas, Asch and Nardelli, JJ.