People v. Tyson

220 A.D.2d 240, 633 N.Y.S.2d 1, 1995 N.Y. App. Div. LEXIS 9825

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 1995
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered October 21, 1992, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the third degree, and also convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him to consecutive terms of 5 to 15 years on the weapon possession conviction and 81/3 to 25 years on the third degree possession of a controlled substance conviction after trial, which sentences are to run concurrently to a term of 5 to 15 years upon the third degree possession of a controlled substance conviction by plea, unanimously affirmed.

The court properly declined to give a missing witness charge with respect to a livery cab driver as he was unavailable at the time of trial and the People demonstrated reasonable efforts to locate the witness (People v Gonzalez, 68 NY2d 424, 428).

The court was empowered to impose consecutive sentences as the acts underlying the two relevant convictions were separate and discrete (see, People v Brathwaite, 63 NY2d 839, 843). We perceive no abuse of discretion in sentencing. Concur— Sullivan, J. P., Rosenberger, Wallach, Ross and Tom, JJ.