People v. Henao

169 A.D.2d 551, 564 N.Y.S.2d 403, 1991 N.Y. App. Div. LEXIS 481

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 1991
• Status: Published

Opinion

Judgment, Supreme Court, New York County (John A. K. Bradley, J.), rendered April 18, 1989, convicting defendant, after jury trial, of robbery in the third degree and grand larceny in the fourth degree and sentencing him, as a second felony offender, to concurrent indeterminate terms of imprisonment of 3 to 6 years and 2 to 4 years, respectively, unanimously affirmed.

Defendant claims on appeal that the trial court erred in granting the People’s request for a missing witness charge regarding an uncalled witness who, defendant testified, he had seen and spoken with just days before the trial began, and who could give information that he and defendant were together near the scene of the robbery for innocent purposes. The trial court duly considered all information offered by defendant regarding the availability of the uncalled witness, and properly gave the missing witness charge upon determination that the uncalled witness possessed knowledge about a material issue in evidence, would be expected to provide testimony favorable to defendant, and was available in the circumstances as presented to the court. (People v Gonzalez, 68 NY2d 424.) Concur—Milonas, J. P., Ellerin, Ross, Kassal and Rubin, JJ.