People v Page

People v Page 2008 NY Slip Op 09712 [57 AD3d 291] December 11, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent,
v
Kenneth Page, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Britta Gilmore of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered January 4, 2006, convicting defendant, after a jury trial, of murder in the second degree and robbery in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 25 years to life, unanimously affirmed.

To the extent defendant is challenging the sufficiency of the evidence, that claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. In addition, we find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The People's case included defendant's admissions to an acquaintance and extensive circumstantial evidence. There is no basis for disturbing the jury's credibility determinations concerning the testimony of the civilian witnesses as well as that of the police witnesses who gathered physical evidence.

The trial court properly denied defendant's request for a missing witness charge regarding the son of the main prosecution witness, on the ground that the uncalled witness was not under the People's control (see People v Gonzalez, 68 NY2d 424, 429 [1986]). The uncalled witness's mother was not a victim of the crime, and there were no circumstances warranting an expectation that the uncalled witness would testify favorably to the People.

We perceive no basis for reducing the sentence. Concur—Andrias, J.P., Saxe, Sweeny, Catterson and Moskowitz, JJ.