| People v Iverson |
| 2008 NY Slip Op 08510 [56 AD3d 491] |
| November 5, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ErnestIverson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, andMaria Park of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.),rendered January 3, 2006, convicting him of murder in the second degree, assault in the firstdegree (three counts), and criminal possession of a weapon in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15 (5),we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The trial court correctly denied the defendant's request for a missing witness charge withrespect to a particular uncalled witness because the request, which was made after both sides hadrested, was untimely (see People vSimon, 6 AD3d 733 [2004]; People v McCloud, 305 AD2d 428 [2003]). In anyevent, such a charge would have been inappropriate because the uncalled witness wasunavailable and his testimony would have been cumulative (see People v Gonzalez, 68NY2d 424, 428 [1986]).
The defendant's claim that the court erred in denying his request for a circumstantial evidencecharge is without merit. A court is required to honor a defendant's request for this charge onlywhere the evidence of his participation in criminal activity is "wholly circumstantial" (Peoplev Guidice, 83 NY2d [*2]630, 636 [1994]; see People vBarnes, 50 NY2d 375, 380 [1980]). Here, the defendant's own statements constituted directevidence of his involvement in the criminal activity at issue (see People v Licitra, 47NY2d 554, 558-559 [1979]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 86[1982]).
The defendant's contention raised in point III of his brief is unpreserved for appellate review,and his remaining contention is without merit. Mastro, J.P., Lifson, Carni and Eng, JJ., concur.