People v. Hinton — 217 A.D.2d 708

Majority

p. 708

The People of the State of New York, Respondent, v Darren Hinton, Appellant.

[630 NYS2d 330]

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldstein, J.), rendered May 14, 1991, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court properly denied the defendant’s request for a missing witness charge regarding the People’s failure to call the second arresting officer to testify, since the officer’s testimony would have been cumulative (see, People v Gonzalez, 68 NY2d 424 , 428). In any event, the prosecution offered to make the officer available to the defendant, yet the defendant

p. 709

declined to call him as a witness, and the trial court permitted the defense counsel to argue on summation that the jury could draw the negative inference from the People’s failure to call the officer (see, People v Sykes, 151 AD2d 523 , 524; see also, People v Mendez, 138 AD2d 637 , 638).

The defendant’s remaining contention is unpreserved for appellate review (see, CPL 470.05 [2]; see, People v Starling, 85 NY2d 509 ; People v Udzinski, 146 AD2d 245 ). Thompson, J. P., Santucci, Friedmann and Florio, JJ., concur.

Cases cited

People v. Gonzalez 68 NY2d 424 N.Y. 1986-11-25 at 428 p. 708
People v. Sykes 151 AD2d 523 N.Y. App. Div. 1989-06-05 at 524 p. 709
People v. Mendez 138 AD2d 637 N.Y. App. Div. 1988-03-21 at 638 p. 709
People v. Starling 85 NY2d 509 N.Y. 1995-04-27 p. 709
People v. Udzinski 146 AD2d 245 N.Y. App. Div. 1989-04-17 p. 709