People v. Porter

• Citation: 268 AD2d 538,701 N.Y.S.2d 649
• Parties: 2000 N.Y. Slip Op. 803 The PEOPLE, etc., respondent, v. Kial PORTER, appellant.
• Decision Date: 24 January 2000
• Court: New York Supreme Court Appellate Division

Page 649

701 N.Y.S.2d 649

2000 N.Y. Slip Op. 803

The PEOPLE, etc., respondent, v. Kial PORTER, appellant.

Supreme Court, Appellate Division,

Second Department, New York.

Jan. 24, 2000.

Lynn W.L. Fahey, New York, N.Y. (Sonia Mikolic-Torreira of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Lori Glachman, and Michael Lee of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Knipel, J.), rendered March 6, 1998, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the trial court erred in not giving a missing witness charge to the jury. However, the defendant did not raise in the Supreme Court any of the substantive arguments concerning availability or control which he now raises on appeal. Therefore, the defendant's contentions are not preserved for appellate review (see, CPL 470.05 ). In any event, in light of the witness's lack of cooperation with law enforcement officials, and other circumstances of this case, the witness was not under the control of the prosecution such that the People would have been expected to call him (see, People v. Gonzalez, 68 N.Y.2d 424, 429, 509 N.Y.S.2d 796, 502 N.E.2d 583). A missing witness charge was therefore not warranted.

RITTER, J.P., ALTMAN, SCHMIDT, and SMITH, JJ., concur.