| People v Read |
| 2012 NY Slip Op 05556 [97 AD3d 702] |
| July 11, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DavidRead, Appellant. |
—[*1]
Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), forrespondent.
Appeals by the defendant from (1) a judgment of the County Court, Rockland County(Nelson, J.), rendered December 15, 2010, convicting him of aggravated criminal contempt in thefirst degree, criminal contempt in the first degree, and assault in the third degree, underindictment No. 424/08, upon a jury verdict, and imposing sentence, and (2) a judgment of thesame court, also rendered December 15, 2010, convicting him of criminal contempt in the firstdegree under indictment No. 261/09, upon a jury verdict, and imposing sentence.
Ordered that the judgments are affirmed.
On July 31, 2008, the defendant was arrested after he assaulted his wife, who had a validorder of protection against him. He was charged under indictment No. 424/08 with aggravatedcriminal contempt in the first degree, criminal contempt in the first degree, and assault in thethird degree, and, after a jury trial, was convicted of all three crimes.
On April 27, 2009, the defendant made various threats against his wife in the presence ofpolice officers. Thereafter, he was charged under indictment No. 261/09 with two counts ofcriminal contempt in the first degree. After a jury convicted him of the second count, the firstcount of the indictment was dismissed on consent.
On appeal, the defendant contends that the trial court erred during both trials in denying hisrequest for a missing witness charge with respect to his wife, who did not testify in either trial.We note that the People cannot raise the issue of the alleged untimeliness of the defendant'srequests for a missing witness charge for the first time on appeal (see People v Jones, 23 AD3d 399[2005]; People v Young, 4 AD3d441, 441-442 [2004]), and, in any event, the requests were not untimely (see e.g. Peoplev Gonzalez, 68 NY2d 424, 426 [1986]). We find, however, that the trial court properlydenied the defendant's request in both instances, as the record reflects that his wife was not underthe People's control (see People vMonroe, 49 AD3d 900, 901 [2008]; People v Royster, 18 AD3d 375, 375-376 [2005]; People vColeman, 306 AD2d 941, 942 [2003]).
With respect to the trial under indictment No. 424/08, the defendant contends that the courterred in failing to provide a moral certainty charge. This contention is unpreserved for [*2]appellate review (see People v Finkelstein, 75 AD3d 652, 653 [2010]; People vWynn, 198 AD2d 136 [1993]; People v Troy, 162 AD2d 744 [1990]), and is alsowaived (see People v Cleophus, 81AD3d 844, 846 [2011]; People v Boone, 269 AD2d 459, 459-460 [2000]). In anyevent, a moral certainty charge was unwarranted in this case, because both direct andcircumstantial evidence were presented to establish the defendant's culpability (see People vBarnes, 50 NY2d 375, 379-381 [1980]; People v Hinton, 285 AD2d 476, 476-477[2001]; People v Wynn, 198 AD2d at 136; People v Troy, 162 AD2d at 744).
The defendant's contention, also with respect to the trial under indictment No. 424/08, thatcertain statements made by the prosecutor during summation constituted reversible error isunpreserved for appellate review. Defense counsel either did not object to the remarks at issue ormade a general one-word objection, and his motion for a mistrial, made after the completion ofsummations, was untimely (see People vMalave, 7 AD3d 542 [2004]; People v Davis, 272 AD2d 408 [2000]; Peoplev Bruen, 136 AD2d 648, 649 [1988]). In any event, the contention is without merit (see People v Thompson, 81 AD3d670, 672-673 [2011], lv granted 18 NY3d 998 [2012]; People v Franklin, 64 AD3d 614,615 [2009]; People v Diaz, 59AD3d 459, 460 [2009]).
The defendant's contention that reversal of his conviction under indictment No. 261/09 iswarranted because the People allegedly failed to turn over certain material pursuant to Peoplev Rosario (9 NY2d 286 [1961], cert denied 368 US 866 [1961]) is unpreserved forappellate review (see People vKelley, 73 AD3d 809, 810 [2010]; People v Seaton, 45 AD3d 875, 876 [2007]). In any event, therecord reflects that the material was in fact provided to the defendant's trial counsel.
Lastly, the defendant's contention that he received ineffective assistance of counsel under thefederal constitutional standard (see Strickland v Washington, 466 US 668 [1984]) withrespect to the trial under indictment No. 261/09 is without merit. Dillon, J.P., Leventhal, Hall andAustin, JJ., concur.