| People v Weinsheimer |
| 2009 NY Slip Op 09261 [68 AD3d 901] |
| December 8, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Francis Weinsheimer, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs,J.), rendered October 4, 2004, convicting him of burglary in the first degree and sexual abuse inthe third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Hawkins, 11 NY3d484, 493 [2008]; People v Contes, 60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to prove the physical injury element of burglary in the first degree (seePenal Law § 140.30 [2]; People v Palmer, 190 AD2d 564 [1993]; cf. People vHernandez, 82 NY2d 309, 318-319 [1993]).
The trial court properly denied the defendant's request for a missing witness charge, as theuncalled witness was equally available to both parties, and was not under the control of thePeople (see People v Jean-Baptiste,37 AD3d 852 [2007]).
"A presentence report may include any relevant information on the history of the defendant(see CPL 390.30) and may include history not only of prior offenses for which defendanthas been convicted, but even offenses for which he has not been convicted" (People vWhalen, 99 AD2d 883, 884 [1984]). However, the court "must assure itself that theinformation upon which it bases the sentence is reliable and accurate" (People v Outley,80 NY2d 702, 712 [1993]). Here, the trial court properly relied on the information in thepresentence investigation report in sentencing the defendant.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85[1982]).
The defendant's remaining contentions are without merit. Fisher, J.P., Angiolillo, Lott andSgroi, JJ., concur.