People v. Broadhead
| Decision Date | 04 January 2007 |
| Docket Number | 9936.,9935. |
| Citation | 827 N.Y.S.2d 138,36 A.D.3d 423,2007 NY Slip Op 00053 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HASHEEM BROADHEAD, Appellant. |
| Court | New York Supreme Court — Appellate Division |
The verdict was supported by legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]). The evidence supports the conclusion that defendant's use of force against store employees was for the purpose, at least in part, of retaining control of the stolen merchandise that was in his possession, and that he did not use force merely for the purpose of escaping (see e.g. People v Trotter, 24 AD3d 127 [2005], lv denied 6 NY3d 819 [2006]; People v Brandley, 254 AD2d 185 [1998], lv denied 92 NY2d 1028 [1998]).
The court properly exercised its discretion in denying defendant's request for a missing witness charge with respect to one of the two private security guards present during the incident. This witness was not under the People's control for purposes of a missing witness charge, since there was no reason to expect him to provide testimony favorable to the People (see People v Gonzalez, 68 NY2d 424, 428-429 [1986]; compare People v Keen, 94 NY2d 533, 539-540 [2000]). He was no longer an employee of the store from which the goods were stolen (see People v Archie, 167 AD2d 925, 926 [1990], lv denied 77 NY2d 991 [1991]), he had no connection with law enforcement, and his former status as a security guard did not create any relationship with the prosecution amounting to control. Furthermore, his testimony would have been cumulative of the other evidence.
The court properly exercised its discretion in precluding defendant from impeaching a witness with his failure to mention, in his grand jury testimony, a verbal threat made by defendant during the incident, about which the witness testified for the first time on cross-examination at trial. The omitted fact was not a proper prior inconsistent statement, because the grand jury questioning did not call for this information, and because the omission of...
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...witness, who was incarcerated at the time, to have omitted that detail from his statements to the authorities ( see People v. Broadhead, 36 A.D.3d 423, 424, 827 N.Y.S.2d 138, lv. denied 8 N.Y.3d 919, 834 N.Y.S.2d 510, 866 N.E.2d 456; People v. Byrd, 284 A.D.2d 201, 728 N.Y.S.2d 134, lv. den......
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...not employed by the government, were not under the People's control for purposes of a missing witness charge (see People v. Broadhead, 36 A.D.3d 423, 827 N.Y.S.2d 138 [1st Dept. 2007], lv denied 8 N.Y.3d 919, 834 N.Y.S.2d 510, 866 N.E.2d 456 [2007] ; People v. Vargar, 293 A.D.2d 359, 359, 7......
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... ... (Sage) and a co-tenant (Libby), both of whom were present in ... the apartment during the incident. There is no indication ... that Sage was under the People's control for purposes of ... a missing witness charge (see People v Gonzalez, 68 ... N.Y.2d 424, 428-429 [1986]; People v Broadhead, 36 ... A.D.3d 423, 424 [2007], lv denied 8 N.Y.3d 919 ... [2007]; People v McLean, 17 A.D.3d 1150, 1150-1151 ... [2005], lv denied 5 N.Y.3d 791 [2005]). Indeed, ... since Sage "was a close relative of defendant as well as ... of the victim, and since he refused to cooperate with the ... ...
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People v. Broadhead
...N.E.2d 456 8 N.Y.3d 919 PEOPLE v. BROADHEAD. Court of Appeals of the State of New York. March 30, 2007. Appeal from 1st Dept.: 36 A.D.3d 423, 827 N.Y.S.2d 138 (NY). Application for leave to criminal appeal. Denied. (Graffeo, ...