People v. Miles

212 A.D.2d 975, 622 N.Y.S.2d 638, 1995 N.Y. App. Div. LEXIS 1832

Opinion

—Judgment unanimously affirmed. Memorandum: There is no merit to the contention of defendant that the trial court erred in giving a missing witness charge; the record shows that the court denied the People’s request for such a charge and instructed the jury in accordance with a charge agreed upon by both attorneys.

There is also no merit to the contention that defendant was prejudiced by the People’s failure to call Cheryl Riley as a witness. The record fails to disclose any evidence that such a person was available or even existed. In any event, the prosecution had no duty to call her as a witness (see, People v Vaughn, 35 AD2d 889). The court’s charge to the jury on reasonable doubt was proper in all respects. Finally, we conclude that the verdict is supported by legally sufficient evidence (see, People v Bleakley, 69 NY2d 490, 495). (Appeal from Judgment of Genesee County Court, Morton, J.—Burglary, 2nd Degree.) Present—Pine, J. P., Fallon, Wesley, Callahan and Davis, JJ.