People v. Tyson

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

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.