People v. Vera

Appellate Division of the Supreme Court of New York

People v. Vera

11 A.D.3d 716, 784 N.Y.S.2d 562, 2004 N.Y. App. Div. LEXIS 12542

Appellate Division of the Supreme Court of the State of New York·Decided October 25, 2004·Published·Cited by 3 cases

Opinion

Appeal by the defendant from a judgment of the County Court, Suffolk County (Farneti, J.), rendered April 9, 2002, convicting him of gang assault in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).

The prosecutor’s opening statement adequately described what the People intended to prove, and properly prepared the jury to resolve the factual issues of the trial (see CPL 260.30 [3]; People v Kurtz, 51 NY2d 380, 384 [1980], cert denied 451 US 911 [1981]; People v Etoria, 266 AD2d 559 [1999]; People v Carter, 248 AD2d 722 [1998]; People v Vulpis, 173 AD2d 582 [1991]; People v Brown, 158 AD2d 461 [1990], cert denied 498 US 870 [1990]; People v Tzatzimakis, 150 AD2d 512 [1989]; see also Matter of Timothy L., 71 NY2d 835, 837-838 [1988]).

The trial court properly declined to give the jury a missing witness charge. The defendant failed to meet his burden of establishing prima facie entitlement to a missing witness charge, as there was no evidence that the uncalled witnesses had knowledge of a material issue or could provide noncumulative testimony (see People v Wright, 2 AD3d 546, 547 [2003]; People v Zimmerman, 309 AD2d 824 [2003]; People v Johnson, 297 AD2d 822, 823 [2002]; People v Jackson, 287 AD2d 520 [2001]; People v Herrera, 285 AD2d 613, 614 [2001]; People v Profit, 200 AD2d 639 [1994]).

The defendant’s contention that his conviction was the product of a compromise verdict is without merit (see Harris v Rivera, 454 US 339, 345-347 [1981]; People v Farrell, 190 AD2d 746, 747 [1993]; People v Alfaro, 108 AD2d 517 [1985], affd 66 NY2d 985 [1985]). Santucci, J.P., Adams, Mastro and Spolzino, JJ., concur.

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Appeal by the defendant from a judgment of the County Court, Suffolk County (Farneti, J.), rendered April 9, 2002, convicting him of gang assault in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).

The prosecutor’s opening statement adequately described what the People intended to prove, and properly prepared the jury to resolve the factual issues of the trial (see CPL 260.30 [3]; People v Kurtz, 51 NY2d 380, 384 [1980], cert denied 451 US 911 [1981]; People v Etoria, 266 AD2d 559 [1999]; People v Carter, 248 AD2d 722 [1998]; People v Vulpis, 173 AD2d 582 [1991]; People v Brown, 158 AD2d 461 [1990], cert denied 498 US 870 [1990]; People v Tzatzimakis, 150 AD2d 512 [1989]; see also Matter of Timothy L., 71 NY2d 835, 837-838 [1988]).

The trial court properly declined to give the jury a missing witness charge. The defendant failed to meet his burden of establishing prima facie entitlement to a missing witness charge, as there was no evidence that the uncalled witnesses had knowledge of a material issue or could provide noncumulative testimony (see People v Wright, 2 AD3d 546, 547 [2003]; People v Zimmerman, 309 AD2d 824 [2003]; People v Johnson, 297 AD2d 822, 823 [2002]; People v Jackson, 287 AD2d 520 [2001]; People v Herrera, 285 AD2d 613, 614 [2001]; People v Profit, 200 AD2d 639 [1994]).

The defendant’s contention that his conviction was the product of a compromise verdict is without merit (see Harris v Rivera, 454 US 339, 345-347 [1981]; People v Farrell, 190 AD2d 746, 747 [1993]; People v Alfaro, 108 AD2d 517 [1985], affd 66 NY2d 985 [1985]). Santucci, J.P., Adams, Mastro and Spolzino, JJ., concur.

People v. Vera, 11 A.D.3d 716, 784 N.Y.S.2d 562, 2004 N.Y. App. Div. LEXIS 12542 (N.Y. Ct. App. 2004).

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