People v. Frazier, 2010-07149, Ind. No. 5550/09.

• Decision Date: 29 April 2015
• Docket Number: 2010-07149, Ind. No. 5550/09.
• Citation: 127 A.D.3d 1229,2015 N.Y. Slip Op. 03561,7 N.Y.S.3d 523
• Parties: The PEOPLE, etc., respondent, v. Jule FRAZIER, appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 1229
7 N.Y.S.3d 523
2015 N.Y. Slip Op. 03561

The PEOPLE, etc., respondent
v.
Jule FRAZIER, appellant.

2010-07149, Ind. No. 5550/09.

Supreme Court, Appellate Division, Second Department, New York.

April 29, 2015.

7 N.Y.S.3d 524

Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Rhea A. Grob of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.

Opinion

127 A.D.3d 1229

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered July 14, 2010, convicting him of assault in the second degree (four counts), upon his plea of guilty, and criminal possession of a weapon in the second degree and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to establish his prima facie entitlement to a missing witness charge, as there was no evidence that the uncalled witness had knowledge of

7 N.Y.S.3d 525

a material issue or would provide noncumulative testimony (see People v. Keen, 94 N.Y.2d 533, 539, 707 N.Y.S.2d 380, 728 N.E.2d 979 ; People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583 ; People v. Whitlock, 95 A.D.3d 909, 911, 943 N.Y.S.2d 227 ; People v. Rodriguez, 77 A.D.3d 975, 976, 911 N.Y.S.2d 79 ).

Contrary to the defendant's contention, certain photographs posted by the defendant on his MySpace page on the Internet were properly admitted at trial, as they tended to prove material issues, and to illustrate or elucidate other relevant evidence (see People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178 ; People v. Pobliner, 32 N.Y.2d 356, 359, 345 N.Y.S.2d 482, 298 N.E.2d 637 ; People v. Texidor, 123 A.D.3d 746, 996 N.Y.S.2d 715 ; People v. Thomas, 99 A.D.3d 737, 738, 951 N.Y.S.2d 581 ). The trial court providently exercised its discretion in determining that the probative value of the photographs outweighed any prejudice to the defendant (see People v. Wood, 79 N.Y.2d at 960–961, 582 N.Y.S.2d 992, 591 N.E.2d 1178 ; People v. Texidor, 123 A.D.3d 746, 746, 996 N.Y.S.2d 715 ; People v. Thomas, 99 A.D.3d at 738, 951 N.Y.S.2d 581 ).

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