People v. Webb

• Decision Date: 25 April 1994
• Citation: 203 A.D.2d 606,612 N.Y.S.2d 936
• Parties: The PEOPLE, etc., Respondent, v. Stanley WEBB, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 936

612 N.Y.S.2d 936

203 A.D.2d 606

The PEOPLE, etc., Respondent, v. Stanley WEBB, Appellant.

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

April 25, 1994.

Philip L. Weinstein, New York City (Antonio J. Casas, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Jonathan Frank, and William H. Voth, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lewis, J.), rendered December 22, 1992, convicting him of murder in the second degree, upon a jury verdict, and imposed sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court properly denied his request for a missing witness charge as the witness was essentially a stranger to both parties, equally available to both parties, and the evidence did not clearly demonstrate that he was under the control of one party and hostile to another (see, People v. Swinton, 200 A.D.2d 892, 607 N.Y.S.2d 161; People v. Reyes, 191 A.D.2d 522, 595 N.Y.S.2d 57; People v. Lammers, 184 A.D.2d 733, 734, 585 N.Y.S.2d 92; People v. Timoney, 141 A.D.2d 876, 530 N.Y.S.2d 206).

The defendant's Molineux claim is not preserved for appellate review (see, CPL 470.05[2]; People v. Jordan, 193 A.D.2d 890, 597 N.Y.S.2d 807; People v. Washington, 169 A.D.2d 795, 565 N.Y.S.2d 164; People v. Quinones, 166 A.D.2d 330, 561 N.Y.S.2d 4) and, in any event, is without merit because the now-challenged testimony was relevant to motive and intent (see, People v. Kaufman, 156 A.D.2d 718, 719, 549 N.Y.S.2d 471; People v. Stephens, 119 A.D.2d 777, 778, 501 N.Y.S.2d 184), and to complete the narrative of events leading up to the murder (see, People v. Vails, 43 N.Y.2d 364, 368, 401 N.Y.S.2d 479, 372 N.E.2d 320; People v. McDowell, 191 A.D.2d 515, 594 N.Y.S.2d 347; People v. DeLeon, 177 A.D.2d 641, 642, 576 N.Y.S.2d 344).

We have examined the defendant's remaining contention and find it to be without merit (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

THOMPSON, J.P., and BALLETTA, PIZZUTO and JOY, JJ., concur.