| People v McCullough |
| 2014 NY Slip Op 03052 [117 AD3d 1415] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDesmond T. McCullough, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered September 2, 2009. The judgment convicted defendant, upon a jury verdict, ofassault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of assault in the second degree (Penal Law § 120.05 [2]), arisingfrom defendant's shooting of the victim. Defendant contends that County Court erred indenying his request for a missing witness charge. We conclude that any error of the courtin failing to give the missing witness charge is harmless inasmuch as the evidence ofdefendant's guilt is overwhelming, and there is no significant probability that the jurywould have acquitted defendant but for the alleged error (see People v White,265 AD2d 843, 844 [1999], lv denied 94 NY2d 868 [1999]). The overwhelmingevidence of defendant's guilt included the testimony of three eyewitnesses, all of whomwere personally familiar with defendant. Notably, all three witnesses testified that theshooting occurred in broad daylight, and that the assailant was not wearing a mask tocover his face. We reject defendant's related contention that the court erred when itprecluded defense counsel from commenting on the missing witness during summation(see generally People v Miller, 213 AD2d 271, 271 [1995], lv denied 86NY2d 844 [1995]).
Finally, we reject defendant's contention that the court erred in admitting in evidencea letter purportedly written by defendant. "In New York, the general rule is that allrelevant evidence is admissible unless its admission violates some exclusionary rule. . . Evidence is relevant if it has any tendency in reason to prove theexistence of any material fact, i.e., it makes determination of the action more probable orless probable than it would without the evidence" (People v Scarola, 71 NY2d769, 777 [1988]). Even relevant evidence, however, may be held inadmissible in theexercise of the court's discretion if its "probative value is substantially outweighed by thedanger that it will unfairly prejudice the other side or mislead the jury" (id.).Here, we conclude that the probative value of the letter far outweighs any unfairprejudice inasmuch as it was relevant to the issue of the shooter's identity. "[W]hether. . . defendant actually wrote the letter [goes] to the [evidentiary] weight tobe accorded the [letter], not to its [*2]admissibility" (People v Pearce, 81 AD3d856, 856 [2011], lv denied 16 NY3d 898 [2011]). Present—Centra,J.P., Peradotto, Carni, Valentino and Whalen, JJ.