People v. Lopez
| Decision Date | 25 September 1990 |
| Citation | 165 A.D.2d 773,564 N.Y.S.2d 44 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Albert LOPEZ a/k/a Alberto Lopez, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before ROSS, J.P., and ROSENBERGER, ASCH, KASSAL and RUBIN, JJ.
Judgment of the Supreme Court, New York County, (Rena K. Uviller, J. at suppression hearing, jury trial, and sentence), rendered May 5, 1988, convicting defendant, of burglary in the first degree and robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent indeterminate prison terms of from 12 1/2 years to life, is unanimously affirmed.
Defendant entered complainant's unlocked apartment, held her at knifepoint, tied and gagged her, and then took a $180 radio belonging to her husband.
Defendant contends that his right to counsel was violated because, at the time he made statements to the police, he was represented by counsel on a pending unrelated case (see People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371). However, the Court of Appeals overruled Bartolomeo, finding that it "imposes an unacceptable burden on law enforcement" (People v. Bing, 76 N.Y.2d 331, 337, 559 N.Y.S.2d 474, 558 N.E.2d 1011). While a defendant represented by counsel on the charge for which he is actually being held in custody cannot be interrogated in the absence of counsel on any matter, whether related or unrelated to the subject matter of the representation (People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709), here, defendant was not represented by counsel on the pending charges and could be validly questioned.
Nor did the court improperly submit a missing witness charge to the jury. When a defendant, as here, chooses to testify, a missing witness charge may be delivered against the defense (People v. Rodriguez, 38 N.Y.2d 95, 378 N.Y.S.2d 665, 341 N.E.2d 231; People v. Paylor, 70 N.Y.2d 146, 518 N.Y.S.2d 102, 511 N.E.2d 370). The prosecution satisfied its initial burden by promptly notifying the court that the uncalled witness could provide material testimony favorable to the defense; defendant failed to demonstrate that the charge was inappropriate because the witness was neither available nor under his control (People v. Gonzalez, 68 N.Y.2d 424, 427-29, 509 N.Y.S.2d 796, 502 N.E.2d 583). The witness, as a close friend of defendant, was properly found by the jury to be under defendant's...
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People v. Rosado
...charge would be appropriate. 6 (People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986]; People v. Lopez, 165 A.D.2d 773, 564 N.Y.S.2d 44 [1st Dept., 1990]. However, the party seeking such charge must promptly notify the court "so that the Court can appropriately exercise......
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People v. Hagi
...defendant's account; and, there was evidence that he was both available and under defendant's control. (See, People v. Lopez, 165 A.D.2d 773, 564 N.Y.S.2d 44, 45, app. denied, 77 N.Y.2d 879, 568 N.Y.S.2d 922, 571 N.E.2d 92.) Defendant testified that he had seen Adawi, who lived near the Som......
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People v. Ramos
...noncumulative evidence, and that his relationship to defendant was such as to establish the requisite control (see, People v. Lopez, 165 A.D.2d 773, 774, 564 N.Y.S.2d 44, lv. denied 77 N.Y.2d 879, 568 N.Y.S.2d 922, 571 N.E.2d 92). There is no merit to defendant's contention that the husband......
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