People v. Johnson

257 A.D.2d 439, 684 N.Y.S.2d 513, 1999 N.Y. App. Div. LEXIS 227

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 1999
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Antonio Brandveen, J.), rendered June 6, 1994, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and seventh degrees and criminal possession of a weapon in the fourth degree, and sentencing him to a term of 1 to 3 years concurrent with two terms of 1 year, respectively, unanimously affirmed. The matter is remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).

The verdict was not against the weight of the evidence. Defendant’s guilt was established by overwhelming evidence that he exercised dominion and control of the contraband recovered from his apartment, in his presence.

We reject defendant’s claim that the court failed to properly and sufficiently address four Rosario claims. We agree with the court that two of the statements did not constitute Rosario material. In another instance, defendant received the remedy that he requested and, in the final instance, he chose not to make a sufficient record and sought no sanction.

Defendant’s request for a missing witness charge, not made until both sides presented their evidence and rested, was untimely. In addition, all but one of the police officers in question had been in defendant’s apartment briefly and the officer who had remained with the testifying officer could merely have been expected to provide cumulative testimony (People v Gonzalez, 68 NY2d 424, 427; compare, People v Kitching, 78 NY2d 532).

We have considered and rejected defendant’s remaining contentions. Concur—Sullivan, J. P., Lerner, Mazzarelli and Saxe, JJ.