People v. Torres

255 A.D.2d 129, 681 N.Y.S.2d 235, 1998 N.Y. App. Div. LEXIS 11711

Opinion

—Judgment, Supreme Court, New York County (Michael Obús, J.), rendered November 25, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, and judgment, same court (Bruce Allen, J.), rendered January 10, 1997, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a concurrent term of AVz to 9 years, unanimously affirmed.

The court properly granted the People’s request for a missing witness charge with respect to defendant’s mother since the evidence demonstrates that her testimony would have been material to defendant’s alibi defense in that she was sufficiently knowledgeable on the alibi issue (People v Garcia, 250 AD2d 421). The testimony would not have been cumulative to the testimony of the other alibi witness since “the lines of dispute were drawn sharply in terms of credibility and the testimony of [defendant’s mother,] the only additional person who was present [with defendant at the apartment when the crime took place], might have made the difference” on this material issue (People v Rodriguez, 38 NY2d 95, 101; see also, People v Brockington, 184 AD2d 646, 647, lv denied 80 NY2d 927). Concur— Lerner, P. J., Sullivan, Nardelli and Rubin, JJ.