People v. Read

• Decision Date: 11 July 2012
• Citation: 97 A.D.3d 702,947 N.Y.S.2d 614,2012 N.Y. Slip Op. 05556
• Parties: The PEOPLE, etc., respondent, v. David READ, appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 702
947 N.Y.S.2d 614
2012 N.Y. Slip Op. 05556

The PEOPLE, etc., respondent,
v.
David READ, appellant.

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

July 11, 2012.

[947 N.Y.S.2d 615]

John R. Lewis, Sleepy Hollow, N.Y., for appellant.

Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

[97 A.D.3d 702]Appeals by the defendant from (1) a judgment of the County Court, Rockland County (Nelson, J.), rendered December 15, 2010, convicting him of aggravated criminal contempt in the first degree, criminal contempt in the first degree, and assault in the third degree, under Indictment No. 424/08, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court, also rendered December 15, 2010, convicting him of criminal contempt in the first degree under Indictment No. 261/09, upon a jury verdict, and imposing sentence.

ORDERED that the judgments are affirmed.

On July 31, 2008, the defendant was arrested after he assaulted his wife, who had a valid order of protection against him. He was charged under Indictment No. 424/08 with aggravated criminal contempt in the first degree, criminal contempt in the first degree, and assault in the third degree, and, after a jury trial, was convicted of all three crimes.

[947 N.Y.S.2d 616]

On April 27, 2009, the defendant made various threats against his wife in the presence of police officers. Thereafter, he was charged under Indictment No. 261/09 with two counts of criminal contempt in the first degree. After a jury convicted him of [97 A.D.3d 703]the second count, the first count of the indictment was dismissed on consent.

On appeal, the defendant contends that the trial court erred during both trials in denying his request for a missing witness charge with respect to his wife, who did not testify in either trial. We note that the People cannot raise the issue of the alleged untimeliness of the defendant's requests for a missing witness charge for the first time on appeal ( see People v. Jones, 23 A.D.3d 399, 808 N.Y.S.2d 84;People v. Young, 4 A.D.3d 441, 441–442, 771 N.Y.S.2d 364), and, in any event, the requests were not untimely ( see e.g. People v. Gonzalez, 68 N.Y.2d 424, 426, 509 N.Y.S.2d 796, 502 N.E.2d 583). We find, however, that the trial court properly denied the defendant's request in both instances, as the record reflects that his wife was not under the People's control ( see People v. Monroe, 49 A.D.3d 900, 901, 854 N.Y.S.2d 472;People v. Royster, 18 A.D.3d 375, 375–376, 795 N.Y.S.2d 560;People v. Coleman, 306 A.D.2d 941, 942, 760...