People v. Gadson

161 A.D.2d 795, 556 N.Y.S.2d 666, 1990 N.Y. App. Div. LEXIS 6719

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 1990
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered September 2, 1987, convicting him of murder in the second degree, attempted robbery in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

We find that the trial court meaningfully responded to the jury’s request for a readback of the testimony of one of the People’s witnesses (see, People v Almodovar, 62 NY2d 126, 131; People v Malloy, 55 NY2d 296, 301). It was well within the court’s discretion to have asked the jury what portion of the testimony it wanted read back and for the jury to indicate when it had heard enough. Thus the court indicated to the jury a continued willingness to abide by their wishes (see, People v Elie, 150 AD2d 719; People v Carrero, 140 AD2d 533, 534).

Further, the court properly denied a missing witness charge with respect to Barry Dowdy since it was not shown that the witness was under the control of the prosecutor and it was established that the witness would in fact testify more favorably to the defendant than he would to the prosecution (see, People v Gonzalez, 68 NY2d 424, 427-428). Further, the witness was in court and was available to the defense.

The defendant’s sentence was fully justified in view of the callous, senseless and brutal nature of the crime.

The defendant’s remaining contention is unpreserved for appellate review (see, CPL 470.05 [2]; People v Santiago, 52 NY2d 865, 866; People v Carter, 137 AD2d 826, 828) and we decline to review it in the exercise of our interest of justice jurisdiction. Mangano, P. J., Brown, Sullivan and Balletta, JJ., concur.