People v Smalls

2011 NY Slip Op 00711

Decided on February 1, 2011

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 1, 2011
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
DANIEL D. ANGIOLILLO, J.P.
L. PRISCILLA HALL
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.
2008-10592
(Ind. No. 8972/06)






Lynn W. L. Fahey, New York, N.Y. (John Gemmill of counsel), for
appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove and Keith Dolan of counsel),
for respondent.


DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered November 5, 2008, convicting him of attempted assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was not deprived of a fair trial by the Supreme Court's denial of his request for a missing witness charge (see People v Gonzalez, 68 NY2d 424, 427-428; People v Vela, 11 AD3d 716). In any event, even if the Supreme Court erred in denying the defendant's request for a missing witness charge, any error was harmless, as there was overwhelming evidence of the defendant's guilt and no significant probability that the error contributed to his conviction (see People v Crimmins, 36 NY2d 230, 241-242).
ANGIOLILLO, J.P., HALL, ROMAN and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court