People v McCollough

2005 NYSlipOp 01804

March 10, 2005

Appellate Division, First Department

As corrected through Wednesday, May 18, 2005

The People of the State of New York, Respondent, v Maurice McCollough, Appellant.

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Judgment, Supreme Court, New York County (Bernard J. Fried, J.), rendered August 27, 2002, convicting defendant, after a jury trial, of attempted murder in the second degree, criminal possession of a weapon in the second degree and reckless endangerment in the first degree, and sentencing him to concurrent terms of 25 years, 15 years and 21/3 to 7 years, respectively, unanimously affirmed.

The court properly denied defendant's request for a missing witness charge, since, as the People demonstrated, the witness's testimony would have been cumulative to the consistent testimony of the People's five eyewitnesses (see People v Macana, 84 NY2d 173, 180 [1994]). The court also properly precluded defendant from commenting in summation on the People's failure to call this witness, since defendant did not show that he had a good faith basis for such comments, a showing required by People v Tankleff (84 NY2d 992, 994-995 [1994]). In any event, were we to find any error with regard to either of these rulings, we would find it to be harmless in light of the overwhelming evidence of defendant's guilt. To the extent that defendant is raising a constitutional claim, such claim is unpreserved (see People v Angelo, 88 [*2]NY2d 217, 222 [1996]), and we decline to review it in the interest of justice. Were we to review such claim, we would reject it.

We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Mazzarelli, Friedman, Marlow and Sullivan, JJ.