People v. Duc

Appellate Division of the Supreme Court of New York

People v. Duc

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

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

DecidedJune 15, 1993

StatusPublished

This text of 194 A.D.2d 406 (People v. Duc) 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. Duc, 194 A.D.2d 406, 598 N.Y.S.2d 528, 1993 N.Y. App. Div. LEXIS 6182 (N.Y. Ct. App. 1993).

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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.

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—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.

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Bluebook (online)

194 A.D.2d 406, 598 N.Y.S.2d 528, 1993 N.Y. App. Div. LEXIS 6182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-duc-nyappdiv-1993.

Opinion

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