| People v Mingo |
| 2011 NY Slip Op 03089 [83 AD3d 869] |
| April 12, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Vernon Mingo, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Lois Cullen Valerio,and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Loehr,J.), rendered March 4, 2009, convicting him of criminal possession of a controlled substance inthe third degree, escape in the first degree, criminal possession of a controlled substance in theseventh degree, and resisting arrest, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the defendant preserved his contention that the trial courterred in failing to give a missing witness instruction with respect to a potential witness for thePeople. Although the trial court should have given a missing witness instruction, the failure to doso was harmless (see People v Crimmins, 36 NY2d 230, 242 [1975]; People vBeltry, 235 AD2d 546 [1997];compare People v Marsalis, 22 AD3d 866, 869 [2005]).
With respect to the missing witness instruction regarding a witness for the defense, thedefendant failed to rebut the People's prima facie showing that they were entitled to thatinstruction (see People v Edwards,14 NY3d 733, 735 [2010]; People v Savinon, 100 NY2d 192, 200-201 [2003];People v Gonzalez, 68 NY2d 424, 427-431 [1986]). Likewise, since the defendant choseto present affirmative proof in his defense, the fact that he failed to call a material witness underhis control was properly brought to the jury's attention and did not impermissibly shift the burdenof proof (see People v Rivera, 292 AD2d 549 [2002]; People v Wood, 271 AD2d705 [2000]; People v Shaw, 112 AD2d 958, 959-960 [1985]; see generally People vSavinon, 100 NY2d at 199-200).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).[*2]
The defendant's remaining contention is without merit(see People v Halm, 81 NY2d 819, 821 [1993]; People v Tardbania, 72 NY2d852, 853 [1988]; People v Galloway, 54 NY2d 396, 399 [1981]; People vAshwal, 39 NY2d 105, 109 [1976]; People v White, 5 AD3d 511 [2004]; compare People v Williams, 65 AD3d484, 489 [2009]). Angiolillo, J.P., Florio, Belen and Miller, JJ., concur.