People v. Hernandez

Appellate Division of the Supreme Court of New York

People v. Hernandez

235 A.D.2d 367, 653 N.Y.S.2d 322, 1997 N.Y. App. Div. LEXIS 716

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

DecidedJanuary 30, 1997

StatusPublished

Cited by10 cases

This text of 235 A.D.2d 367 (People v. Hernandez) 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. Hernandez, 235 A.D.2d 367, 653 N.Y.S.2d 322, 1997 N.Y. App. Div. LEXIS 716 (N.Y. Ct. App. 1997).

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Opinion

Judgment, Supreme Court, Bronx County (Ira Globerman, J.), rendered September 9, 1994, convicting defendant, after a jury trial, of [368]*368reckless endangerment in the first degree, criminal possession of stolen property in the fourth degree and resisting arrest, and sentencing him, as a second felony offender, to consecutive prison terms of 2 to 4 years, 2 to 4 years and 1 year, unanimously affirmed.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence. There was ample evidence to support the elements of reckless endangerment in the first degree (People v Chrysler, 85 NY2d 413, 415; People v Register, 60 NY2d 270, 277; People v Williams, 158 AD2d 253, lv denied 75 NY2d 971).

Since defendant advanced a different theory of duplicitousness to the trial court, his present contention that the reckless endangerment count is duplicitous is unpreserved for review (People v Fisher, 223 AD2d 493, lv denied 88 NY2d 936) and we decline to review it in the interest of justice. Were we to review it, we would find that the count was not duplicitous since it involved a continuing offense (People v First Meridian Planning Corp., 86 NY2d 608, 615-618; People v Brammer, 189 AD2d 885, 886, lv denied 81 NY2d 967). In any event, "any duplicitousness was alleviated by the manner in which the count [was] submitted to the jury” (People v Fisher, supra, at 494).

Defendant was not entitled to a missing witness charge with respect to a police witness because defendant failed to make a prima facie showing that the witness would have provided material, non-cumulative testimony. Defendant’s speculation that the witness might have provided testimony helpful to the defense did not require a missing witness charge (People v Castro, 200 AD2d 359, lv denied 82 NY2d 923).

We perceive no abuse of sentencing discretion.

Defendant’s remaining arguments are without merit. Concur—Milonas, J. P., Ellerin, Rubin and Mazzarelli, JJ.

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Judgment, Supreme Court, Bronx County (Ira Globerman, J.), rendered September 9, 1994, convicting defendant, after a jury trial, of [368]*368reckless endangerment in the first degree, criminal possession of stolen property in the fourth degree and resisting arrest, and sentencing him, as a second felony offender, to consecutive prison terms of 2 to 4 years, 2 to 4 years and 1 year, unanimously affirmed.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence. There was ample evidence to support the elements of reckless endangerment in the first degree (People v Chrysler, 85 NY2d 413, 415; People v Register, 60 NY2d 270, 277; People v Williams, 158 AD2d 253, lv denied 75 NY2d 971).

Since defendant advanced a different theory of duplicitousness to the trial court, his present contention that the reckless endangerment count is duplicitous is unpreserved for review (People v Fisher, 223 AD2d 493, lv denied 88 NY2d 936) and we decline to review it in the interest of justice. Were we to review it, we would find that the count was not duplicitous since it involved a continuing offense (People v First Meridian Planning Corp., 86 NY2d 608, 615-618; People v Brammer, 189 AD2d 885, 886, lv denied 81 NY2d 967). In any event, "any duplicitousness was alleviated by the manner in which the count [was] submitted to the jury” (People v Fisher, supra, at 494).

Defendant was not entitled to a missing witness charge with respect to a police witness because defendant failed to make a prima facie showing that the witness would have provided material, non-cumulative testimony. Defendant’s speculation that the witness might have provided testimony helpful to the defense did not require a missing witness charge (People v Castro, 200 AD2d 359, lv denied 82 NY2d 923).

We perceive no abuse of sentencing discretion.

Defendant’s remaining arguments are without merit. Concur—Milonas, J. P., Ellerin, Rubin and Mazzarelli, JJ.

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Bluebook (online)

235 A.D.2d 367, 653 N.Y.S.2d 322, 1997 N.Y. App. Div. LEXIS 716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hernandez-nyappdiv-1997.

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