| People v Stewart |
| 2012 NY Slip Op 04782 [96 AD3d 880] |
| June 13, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ShaunStewart, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Howard B. Goodman,and Marie John-Drigo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.),rendered June 17, 2010, convicting him of murder in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the trial court providently exercised its discretion indenying his request for a missing witness charge as to one of the police officers who respondedafter the crime (see People v Savinon, 100 NY2d 192, 196-197 [2003], certdenied 558 US —, 130 S Ct 497 [2009]; People v Gonzalez, 68 NY2d 424,427 [1986]). While the police officer may have been in a position to have knowledge regarding amaterial issue, the defendant failed to demonstrate that the police officer's testimony would havebeen noncumulative (see People vEdwards, 14 NY3d 733, 735 [2010]; People v Buckler, 39 NY2d 895, 897[1976]; People v Lemke, 58 AD3d 1078, 1079 [2009]; People v Watson, 220AD2d 333 [1995]). The trial court also providently exercised its discretion in denying thedefendant's request for a missing witness charge with respect to a manager of the restaurantwhere the crime occurred, who allegedly witnessed the crime. The defendant's contention onappeal that the People failed to make the requisite diligent efforts to produce the manager, whowas outside of the state at the time of the trial, by subpoena pursuant to CPL 640.10, isunpreserved for appellate review (see CPL 470.05 [2]; People v Lopez, 19 AD3d 510,511 [2005]; People v Simon, 6AD3d 733 [2004]). In any event, the defendant's contention is without merit, as thedefendant failed to demonstrate that the manager was available and under the People's control(see People v Smith, 279 AD2d 259 [2001]; People v Vigliotti, 270 AD2d 904,905 [2000]; People v Walker, 105 AD2d 720 [1984]). Angiolillo, J.P., Florio, Belen andChambers, JJ., concur.