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People v. Mingo

83 A.D.3d 869 Court N.Y. App. Div. Decision date 2011-04-12 English

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p. 869
The People of the State of New York, Respondent, v Vernon Mingo, Appellant.
[921 NYS2d 107]

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Loehr, J.), rendered March 4, 2009, convicting him of criminal possession of a controlled substance in the third degree, escape in the first degree, criminal possession of a controlled substance in the seventh degree, and resisting arrest, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the People’s contention, the defendant preserved his contention that the trial court erred in failing to give a missing witness instruction with respect to a potential witness for the People. Although the trial court should have given a missing witness instruction, the failure to do so was harmless (see People v Crimmins, 36 NY2d 230 , 242 [1975]; People v Beltry, 235 AD2d 546 [1997]; compare People v Marsalis, 22 AD3d 866 , 869 [2005]).

With respect to the missing witness instruction regarding a witness for the defense, the defendant failed to rebut the People’s prima facie showing that they were entitled to that instruction (see People v Edwards, 14 NY3d 733 , 735 [2010];

p. 870
People v Savinon, 100 NY2d 192 , 200-201 [2003]; People v Gonzalez, 68 NY2d 424 , 427-431 [1986]). Likewise, since the defendant chose to present affirmative proof in his defense, the fact that he failed to call a material witness under his control was properly brought to the jury’s attention and did not impermissibly shift the burden of proof (see People v Rivera, 292 AD2d 549 [2002]; People v Wood, 271 AD2d 705 [2000]; People v Shaw, 112 AD2d 958 , 959-960 [1985]; see generally People v Savinon, 100 NY2d at 199-200 ).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to .the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 , 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490 , 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

The defendant’s remaining contention is without merit (see People v Halm, 81 NY2d 819 , 821 [1993]; People v Tardbania, 72 NY2d 852 , 853 [1988]; People v Galloway, 54 NY2d 396 , 399 [1981]; People v Ashwal, 39 NY2d 105 , 109 [1976]; People v White, 5 AD3d 511 [2004]; compare People v Williams, 65 AD3d 484 , 489 [2009]). Angiolillo, J.P., Florio, Belen and Miller, JJ., concur.

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