| People v Gallardo |
| 2009 NY Slip Op 00555 [58 AD3d 867] |
| January 27, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Bernard Gallardo, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Ayelet Sela ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered April 24, 2007, convicting him of attempted murder in the second degree, assault in thefirst degree, criminal possession of a weapon in the second degree, and criminal possession of aweapon in the third degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The trial court providently exercised its discretion in declining to give a missing witnessinstruction to the jury (see People v Savinon, 100 NY2d 192, 196 [2003]; People vGonzalez, 68 NY2d 424, 427 [1986]). Contrary to the defendant's contentions, the witness'stestimony would have been cumulative (see People v Rivera, 249 AD2d 141 [1998];People v Tate, 199 AD2d 291 [1993]), and the People demonstrated that they madediligent efforts to find the witness, but could not locate her (see People v Williams, 47 AD3d 854 [2008]; People v Lubrano, 43 AD3d 829[2007]; People v Rivera, 249 AD2d 141 [1998]; People v Skaar, 225 AD2d 824[1996]; People v Aguirre, 201 AD2d 485 [1994]).
The trial court's instructions regarding the defense of justification (see Penal Law§ 35.15) were properly focused on the charges related to the second victim, and providedthe jury with the correct rules to be applied in arriving at its verdict (see People v Ladd,89 NY2d 893, 895 [1996]). The court need not [*2]marshal theevidence except to the extent necessary to explain the application of the law to the facts of thecase, and is not required to explain all the contentions of the parties or outline all theinconsistencies in the evidence (see CPL 300.10 [2]; People v Saunders, 64NY2d 665, 667 [1984]). Spolzino, J.P., Santucci, Leventhal and Chambers, JJ., concur.