People v. Smith

Appellate Division of the Supreme Court of New York

People v. Smith

2017 NY Slip Op 327, 146 A.D.3d 905, 44 N.Y.S.3d 774

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 18, 2017

Docket2014-04787

StatusPublished

This text of 2017 NY Slip Op 327 (People v. Smith) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Smith, 2017 NY Slip Op 327, 146 A.D.3d 905, 44 N.Y.S.3d 774 (N.Y. Ct. App. 2017).

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Opinion

Appeal by the defendant from a judgment of the County Court, Westchester County (Neary, J.), rendered March 5, 2014, convicting him of murder in the second degree (two counts), kidnapping in the first degree, robbery in the second degree, and unlawful imprisonment in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that his half brother was not “available” and, thus, that the County Court erred in granting the People’s request for a missing witness charge, is unpre-served for appellate review, as that argument was not raised before the County Court (see CPL 470.05 [2]). In any event, the court properly gave a missing witness charge as to the defendant’s half brother, who was not called to testify on the defendant’s behalf. The defendant’s testimony tended to establish an alibi defense, and the defendant’s failure to call the available witness to support his alibi was properly brought to the attention of the jury, inasmuch as it appeared that the witness’s testimony would be favorable to the defense and his testimony would not have been trivial or cumulative (see People v Savinon, 100 NY2d 192, 197 [2003]; People v Smith, 240 AD2d 600, 601 [1997]; see also People v Days, 131 AD3d 972, 974 [2015]; People v Blackledge, 129 AD3d 412, 412 [2015]; People v Dantzler, 53 AD3d 504, 504 [2008]).

Chambers, J.P., Roman, Miller and Barros, JJ., concur.

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Appeal by the defendant from a judgment of the County Court, Westchester County (Neary, J.), rendered March 5, 2014, convicting him of murder in the second degree (two counts), kidnapping in the first degree, robbery in the second degree, and unlawful imprisonment in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that his half brother was not “available” and, thus, that the County Court erred in granting the People’s request for a missing witness charge, is unpre-served for appellate review, as that argument was not raised before the County Court (see CPL 470.05 [2]). In any event, the court properly gave a missing witness charge as to the defendant’s half brother, who was not called to testify on the defendant’s behalf. The defendant’s testimony tended to establish an alibi defense, and the defendant’s failure to call the available witness to support his alibi was properly brought to the attention of the jury, inasmuch as it appeared that the witness’s testimony would be favorable to the defense and his testimony would not have been trivial or cumulative (see People v Savinon, 100 NY2d 192, 197 [2003]; People v Smith, 240 AD2d 600, 601 [1997]; see also People v Days, 131 AD3d 972, 974 [2015]; People v Blackledge, 129 AD3d 412, 412 [2015]; People v Dantzler, 53 AD3d 504, 504 [2008]).

Chambers, J.P., Roman, Miller and Barros, JJ., concur.

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Bluebook (online)

2017 NY Slip Op 327, 146 A.D.3d 905, 44 N.Y.S.3d 774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-smith-nyappdiv-2017.

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