People v Weinsheimer

People v Weinsheimer 2009 NY Slip Op 09261 [68 AD3d 901] December 8, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
Francis Weinsheimer, Appellant.

—[*1] Bahn Herzfeld & Multer LLP, New York, N.Y. (Richard L. Herzfeld of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered October 4, 2004, convicting him of burglary in the first degree and sexual abuse in the third 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 Hawkins, 11 NY3d 484, 493 [2008]; People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to prove the physical injury element of burglary in the first degree (see Penal Law § 140.30 [2]; People v Palmer, 190 AD2d 564 [1993]; cf. People v Hernandez, 82 NY2d 309, 318-319 [1993]).

The trial court properly denied the defendant's request for a missing witness charge, as the uncalled witness was equally available to both parties, and was not under the control of the People (see People v Jean-Baptiste, 37 AD3d 852 [2007]).

"A presentence report may include any relevant information on the history of the defendant (see CPL 390.30) and may include history not only of prior offenses for which defendant has been convicted, but even offenses for which he has not been convicted" (People v Whalen, 99 AD2d 883, 884 [1984]). However, the court "must assure itself that the information upon which it bases the sentence is reliable and accurate" (People v Outley, 80 NY2d 702, 712 [1993]). Here, the trial court properly relied on the information in the presentence investigation report in sentencing the defendant.

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85 [1982]).

The defendant's remaining contentions are without merit. Fisher, J.P., Angiolillo, Lott and Sgroi, JJ., concur.