People v Velez

People v Velez 2013 NY Slip Op 08212 Decided on December 10, 2013 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 December 10, 2013
Tom, J.P., Friedman, Acosta, Moskowitz, Gische, JJ.
11305 3450/07

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

v

Felix Velez, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Amy Donner
of
counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Karen Swiger of
counsel), for respondent.

Judgment, Supreme Court, Bronx County (Robert E. Torres, J.), rendered November 21, 2008, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to a term of 5 years, unanimously affirmed.

The court properly denied defendant's request for a missing witness charge, since there was no evidence that the uncalled officer could have provided material, noncumulative testimony. The trial evidence failed to establish that this officer was in a position to see the transaction (see People v Dianda, 70 NY2d 894 [1987]; People v Brunner, 67 AD3d 464, 465 [2009], affd 16 NY3d 820 [2011]; compare People v Kitching, 78 NY2d 532, 538 [1991]). The court accorded defendant sufficient scope in which to comment in summation on this officer's absence, and it properly exercised its discretion in limiting defense arguments on this issue. In any event, we find that any error in the court's denial of a missing witness charge or in its limitations on defendant's summation was harmless (see People v Thomas, 21 NY3d 226, 231 [2013]).

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

ENTERED: DECEMBER 10, 2013

CLERK