| People v Mobley |
| 2010 NY Slip Op 07390 [77 AD3d 488] |
| October 19, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v KipMobley, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Brian E. Rodkey of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered April 20, 2009,convicting defendant, after a jury trial, of two counts of assault in the second degree, and sentencinghim, as a second violent felony offender, to an aggregate term of 10 years, unanimously affirmed.
The court properly declined to give a missing witness charge regarding a witness who was clearlyunavailable. Although the People had secreted him in a hotel for his own safety, he left the hotel,disobeyed a subpoena to appear, and could not be located despite diligent police efforts. Furthermore,although this witness was one of the victims of the assault, he had become hostile to the prosecution andcould not be considered to be in the People's control for purposes of a missing witness charge(see People v Gonzalez, 68 NY2d 424, 428-429 [1986]). We reject defendant'sargument that, because of their actions, the People waived, or should be estopped from asserting, theirclaims of unavailability and lack of control. Even if the witness had initially been available to the Peopleand within their control, that situation had changed by the time of trial as the result of the witness'sbehavior, and there was no basis for the jury to draw any adverse inference against the People fromtheir inability to bring him to court. We have considered and rejected defendant's remaining argumentson this issue.
We perceive no basis for reducing the sentence. Concur—Gonzalez, P.J., Tom, Catterson,Moskowitz and Richter, JJ.