People v. Maisonave

• Decision Date: 16 May 1988
• Citation: 140 A.D.2d 545,528 N.Y.S.2d 626
• Parties: The PEOPLE, etc., Respondent, v. Wilfredo MAISONAVE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 626

528 N.Y.S.2d 626

140 A.D.2d 545

The PEOPLE, etc., Respondent, v. Wilfredo MAISONAVE, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 16, 1988.

Philip L. Weinstein, New York City (Steven B. Wasserman, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Felix M. Hester, of counsel), for respondent.

Before MOLLEN, P.J., and MANGANO, BROWN and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered July 18, 1986, convicting him of attempted murder in the second degree, assault in the second degree (two counts), criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The charges arise out of a shooting which occurred outside a bar in Ridgewood, Queens, in May 1985. The defendant entered the bar at approximately 3 A.M., with a gun, looking for a person with whom he had previously had either an argument or a scuffle. He waived the gun at the bartender. The bartender's adult son intervened and was shot twice in the process. A second man grabbed the defendant in an attempt to disarm him and was also shot in the ensuing struggle.

Statements given on the day after the shooting by the bartender, the two victims and another witness to the investigating police officer, Detective Otto, and recorded by him in his written reports, differed from the trial testimony of these witnesses. When the defense counsel questioned the witnesses during the trial about their prior inconsistent statements, as contained in the police reports, the witnesses either disavowed the earlier versions of the incident or attempted to clarify them so as to indicate that they were consistent with their trial testimony. The defense counsel attempted to put the police reports into evidence but was unsuccessful because the trial court ruled that without the presence of Detective Otto, who was on terminal leave from the police department awaiting retirement and had not been called as a witness by the People, no proper foundation existed for the introduction of the reports. At the defendant's request a judicial subpoena was served on Detective Otto's former commanding officer and he, the trial court, the court clerk and defense counsel made numerous attempts to locate Detective Otto during the week-long trial. The court granted one continuance in an effort to secure the detective's attendance but still he could not be found.

The defendant contends that the court should have done more to hail the missing detective into court and in view of his nonattendance the defendant should have been permitted to introduce his written reports. A review of the record reveals, however, that the court did all that could reasonably have been done under the circumstances. Moreover, it is well-settled that the decision as to whether to grant or deny an adjournment for any purpose is a matter resting within the sound discretion of the trial court ( see, People v. Singleton, 41 N.Y.2d 402, 405, 393 N.Y.S.2d 353, 361 N.E.2d 1003; People v. Oskroba, 305 N.Y. 113, 117, 111 N.E.2d 235, rearg. denied 305 N.Y. 696, 112...