| People v Lewis |
| 2012 NY Slip Op 07149 [99 AD3d 1104] |
| October 25, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Miles Lewis,Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Rita A. Romani of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Rensselaer County (Milano,J.), rendered May 11, 2009, upon a verdict convicting defendant of the crimes of burglary in thefirst degree, attempted robbery in the first degree, assault in the second degree and endangeringthe welfare of a child.
Following a jury trial, defendant was convicted of burglary in the first degree, attemptedrobbery in the first degree, assault in the second degree and endangering the welfare of a child forhis role in an incident in which he and two others broke into the house of Christian McGrath,held McGrath's then 12-year-old son at gunpoint and repeatedly struck McGrath in the head witha pistol while asking him where his money was located. Defendant was then sentenced to anaggregate prison term of 12½ years, followed by five years of postrelease supervision.Defendant appeals.
Defendant's conviction is not against the weight of the evidence. At trial, both McGrath andhis son testified unequivocally that they recognized defendant as the person who had repeatedlystruck McGrath with the gun while demanding that McGrath turn over his money, based uponboth defendant's voice and his physical appearance. McGrath testified that he and defendant wereclose acquaintances and that he had heard defendant's voice, which had a distinctive accent,"[m]illions of times." He also testified that he recognized defendant's eyeglasses that defendantwore every day. McGrath's testimony was corroborated by his son, [*2]who testified that he was very familiar with defendant and that healso recognized defendant by his distinctive, accented voice. In addition, police officers whoresponded to McGrath's 911 call testified that, upon their arrival within minutes after theincident, McGrath immediately reported to them that "Miles" had been one of the men whoattacked him. Further evidence established that defendant was familiar with the layout ofMcGrath's house and knew that McGrath kept large amounts of cash in his home. In his defense,defendant's girlfriend testified that he was elsewhere at the time of the alleged confrontation.According deference to the jury's credibility determinations (see People v Romero, 7 NY3d 633, 645 [2006]; People v Baltes, 75 AD3d 656,659 [2010], lv denied 15 NY3d 918 [2010]), and considering the evidence in a neutrallight and the inferences that can be reasonably drawn therefrom (see People v Heard, 92 AD3d1142, 1144 [2012], lv denied 18 NY3d 994 [2012]), the jury's determination thatdefendant was guilty of the crimes with which he was charged is supported by the weight of theevidence.
Next, we find no error with respect to County Court's denial of defendant's request for amissing witness charge. Contrary to defendant's assertions, had the People called the twodetectives who investigated the incident, their testimony regarding their investigation of thecrime scene would have been cumulative to the testimony provided by McGrath, McGrath's sonand the two police officers who responded to the scene (see People v McCottery, 90 AD3d 1323, 1326 [2011], lvdenied 19 NY3d 975 [2012]; Peoplev Wilkins, 75 AD3d 847, 849 [2010], lv denied 15 NY3d 857[2010]).[FN*]To the extent that defendant claims that the witnesses could have testified as to why the policedid not immediately attempt to locate defendant upon learning of his purported involvement inthe incident, defendant did not establish how such testimony would not have been beneficial tothe People and, thus, the absence of such testimony did not warrant a missing witness charge(see generally People v Gonzalez, 68 NY2d 424, 428 [1986]; People v Hilliard, 49 AD3d 910,913 [2008], lv denied 10 NY3d 959 [2008]).
Finally, defendant's challenge to County Court's response to a written communication fromthe jury was not preserved for our review because he made no objection to that response(see CPL 470.05 [2]).
Mercure, J.P., Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: We also note that, had thePeople called the detectives to the stand, County Court's pretrial Huntley ruling wouldhave prohibited the People from eliciting testimony from them regarding statements made bydefendant following the incident.