People v. Rodriguez

153 A.D.2d 703, 544 N.Y.S.2d 874, 1989 N.Y. App. Div. LEXIS 11046

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered March 25, 1988, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the trial court committed reversible error in denying his request for a missing witness charge with respect to his girlfriend, a coperpetrator. According to the defendant, the prosecutor’s showing that the girlfriend was under the influence of crack at the time of the incident did not demonstrate the inappropriateness of a missing witness charge. We disagree. A showing that an uncalled witness is "not knowledgeable” about a material issue is sufficient to oppose a request for a missing witness charge (People v Gonzalez, 68 NY2d 424, 428). The defendant’s claims that the prosecution’s showing was tardy, self-serving and disingenuous are not supported by the record and were not accepted by the trial court, which is best suited to make such a determination (accord, People v Gonzalez, supra, at 430). In any event, there was nothing to indicate that the uncalled witness’s testimony would have been anything but cumulative (see, People v Almodovar, 62 NY2d 126).

We have considered the defendant’s remaining contentions and find them to be without merit or unpreserved. Bracken, J. P., Kunzeman, Sullivan and Balletta, JJ., concur.