People v Ortiz

People v Ortiz 2007 NY Slip Op 07472 [44 AD3d 364] October 9, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

The People of the State of New York, Respondent,
v
Jorge Ortiz, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered April 7, 2005 convicting defendant, after a jury trial, of rape in the first degree and two counts of course of sexual conduct against a child in the first degree, and sentencing him to concurrent terms of 15 years, unanimously affirmed.

The court properly denied defendant's request for a missing witness charge as to the victim's brother, since defendant did not establish that he was in a position to see or hear any of the events at issue, and thus to provide material testimony as to whether or not they occurred (see People v Dianda, 70 NY2d 894 [1987]). Moreover, after unsuccessfully requesting a missing witness instruction, defense counsel interviewed the witness, chose not to call him, and made a statement to the court that effectively conceded that the witness could not supply any material testimony (see People v Brownlee, 199 AD2d 520 [1993]), lv denied 83 NY2d 869 [1994]). Defendant's claim that the brother's testimony was material because he was a prompt outcry witness is unpreserved and we decline to review it in the interest of justice. Were we to review it, we would find it without merit. Concur—Lippman, P.J., Tom, Marlow, Gonzalez and Malone, JJ.