People v. Mateo

188 A.D.2d 438, 592 N.Y.S.2d 588, 1992 N.Y. App. Div. LEXIS 14747

Opinion

Judgment, Supreme Court, New York County (James Leff, J.), rendered May 3, 1990, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the second degree, and sentencing him as a second felony offender, to a term of 7 years to life, unanimously affirmed.

The court properly instructed the jury that defendant’s common-law wife was a missing witness (see, People v Gonzalez, 68 NY2d 424, 427), the defense having failed to meet his burden of showing that her testimony would be cumulative to that of his other alibi witnesses (see, People v Fields, 76 NY2d 761, 763). The court’s charge fairly tracked the preferable instructions set forth in People v Paylor (70 NY2d 146, 149), and the inclusion of "the strongest adverse inference” language, which should be avoided, does not, in the circumstances of this case, in light of the overwhelming evidence, warrant reversal. Concur — Carro, J. P., Rosenberger, Ellerin, Kupferman and Kassal, JJ.