| People v Frazier |
| 2015 NY Slip Op 03561 [127 AD3d 1229] |
| April 29, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jule Frazier, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, KeithDolan, and Rhea A. Grob of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered July 14, 2010, convicting him of assault in the second degree (fourcounts), upon his plea of guilty, and criminal possession of a weapon in the seconddegree and reckless endangerment in the first degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant failed to establish his prima facie entitlement to a missing witnesscharge, as there was no evidence that the uncalled witness had knowledge of a materialissue or would provide noncumulative testimony (see People v Keen, 94 NY2d533, 539 [2000]; People v Gonzalez, 68 NY2d 424, 427 [1986]; People v Whitlock, 95 AD3d909, 911 [2012]; People vRodriguez, 77 AD3d 975, 976 [2010]).
Contrary to the defendant's contention, certain photographs posted by the defendanton his MySpace page on the Internet were properly admitted at trial, as they tended toprove material issues, and to illustrate or elucidate other relevant evidence (seePeople v Wood, 79 NY2d 958, 960 [1992]; People v Pobliner, 32 NY2d 356,359 [1973]; People vTexidor, 123 AD3d 746 [2014]; People v Thomas, 99 AD3d 737, 738 [2012]). The trialcourt providently exercised its discretion in determining that the probative value of thephotographs outweighed any prejudice to the defendant (see People v Wood, 79NY2d at 960-961; People vTexidor, 123 AD3d 746, 746 [2014]; People v Thomas, 99 AD3d at738).
The defendant's contention that the admission of testimony about an eyewitness'sprior identification of him improperly bolstered that eyewitness's identification of him attrial is unpreserved for appellate review (see CPL 470.05 [2]), and we decline toreach that contention in the exercise of our interest of justice jurisdiction.
The condition of the plea that the defendant be truthful in responding to the inquiriesof the probation department was explicit and objective, and was acknowledged,understood, and accepted by the defendant as part of the plea agreement (see People vHicks, 98 NY2d 185, 188-189 [2002]; People v Bragg, 96 AD3d 1071 [2012]; People v Butler, 49 AD3d894, 895 [2008]). The defendant's violation of that condition allowed the sentencingcourt to impose the enhanced sentence (see People v Butler, [*2]49 AD3d at 895). Moreover, as the defendant was awarethat he faced an enhanced sentence if he failed to comply with the plea agreement, theenhanced sentence was appropriate (see People v Grant, 122 AD3d 767 [2014]; People v White, 3 AD3d543, 544 [2004]; People v Delatorre, 306 AD2d 419, 420 [2003]; Peoplev Walters, 273 AD2d 418 [2000]). To the extent that the defendant argues that thesentence imposed is excessive, a general waiver of the right to appeal, which is knowing,voluntary, and intelligent, encompasses the claim that the term of imprisonment imposedunder an enhanced sentence is harsh and excessive where, as here, the defendant wasinformed that a maximum sentence could be imposed if he failed to comply with theconditions of the plea agreement (see People v White, 3 AD3d 543, 544 [2004]; People vOrtiz, 295 AD2d 449 [2002]; People v Miles, 268 AD2d 489 [2000]).Mastro, J.P., Leventhal, Cohen and Maltese, JJ., concur.