People v Riley

People v Riley 2011 NY Slip Op 06598 Decided on September 27, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 27, 2011
Andrias, J.P., Sweeny, Moskowitz, Richter, Román, JJ.
5585 4406/06

[*1]The People of the State of New York, Respondent,

v

William Riley, Defendant-Appellant.



 
Robert S. Dean, Center for Appellate Litigation, New York
(Peter Theis of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jared
Wolkowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered November 16, 2007, convicting defendant, after a jury trial, of gang assault in the second degree, and sentencing him to a term of 10 years, unanimously affirmed.

The court properly denied defendant's request for a missing witness charge. Defendant did not establish that the uncalled witness could have been expected to provide material and noncumulative testimony (see e.g. People v Arnold, 48 AD3d 239, 240-241 [2008], lv denied 10 NY3d 859 [2008]). Furthermore, the witness was, at most, a casual acquaintance of the victim; accordingly, the witness was not in the People's control for
purposes of such an instruction (see e.g. People v Nieves, 294 AD2d 152 [2002], lv denied 98 NY2d 700 [2002]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 27, 2011

CLERK