People v. Mulero

229 A.D.2d 402, 644 N.Y.S.2d 650, 1996 N.Y. App. Div. LEXIS 7568

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1996
• Status: Published

Opinion

—Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (DeLury, J.), rendered August 27, 1990, convicting him of robbery in the second degree and grand larceny in the fourth degree under Indictment No. 12246/89, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, also rendered August 27,1990, revoking a sentence of probation previously imposed by the same court (Slavin, J.), under Indictment No. 5152/85, upon a finding that he had violated a condition thereof, and imposing a sentence of imprisonment upon his previous conviction of burglary in the third degree.

Ordered that the judgment and the amended judgment are affirmed.

Contrary to defendant’s contention, he was not entitled to a missing witness charge in connection with his conviction under Indictment No. 12246/89 because the People failed to call a witness who saw the incident. That witness, through his lawyer, refused to testify, rebutting the defendant’s prima facie showing of entitlement to the charge (see, People v Macana, 84 NY2d 173).

The defendant’s sentence is not excessive (see, People v Suitte, 90 AD2d 80). O’Brien, J. P., Sullivan, Florio and McGinity, JJ., concur.