| People v Brown |
| 2016 NY Slip Op 03766 [139 AD3d 1178] |
| May 12, 2016 |
| Appellate Division, Third Department |
[*1](May 12, 2016)
| The People of the State of New York, Respondent, v Erik Brown, Appellant. |
M. Joe Landry, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered February 13, 2013, upon a verdict convicting defendant of thecrimes of assault in the second degree and assault in the third degree.
As a result of separate but related incidents in which defendant stabbed Jolene Taylorin the leg with a knife and then, the following month, he punched her in the face andallegedly stabbed Romeo Faulkner, defendant was charged with two counts of assault inthe second degree and one count of assault in the third degree. Following a jury trial,defendant was acquitted of the count of assault in the second degree arising out of thealleged stabbing of Faulkner and convicted on the remaining two counts arising out ofthe attacks on Taylor. Defendant appeals.
Although defendant moved for a trial order of dismissal at the close of the People'sproof, he failed to specify the grounds upon which he sought dismissal of the count ofassault in the third degree. Accordingly, he failed to preserve his argument that thePeople's evidence was legally insufficient to support his conviction on that count (see People v Hawkins, 11NY3d 484, 492 [2008]; People v Launder, 132 AD3d 1151, 1151 [2015]). Whilehis motion did allege specific insufficiencies in the People's evidence regarding hisconviction of the count of assault in the second degree, this argument is unpreserved aswell, as he failed to renew his motion at the close of all proof (see People v Lane, 7 NY3d888, 889 [2006]; People vPeterkin, 135 AD3d 1192, 1192 [2016]). In any event, were these issuesproperly before us, we would find them to be meritless. Testimony in the record providesa valid line of reasoning and permissible inferences from which a jury could find beyonda reasonable doubt that defendant was properly [*2]identified as the perpetrator and that he physically injuredTaylor when he punched her in the face (see Penal Law § 120.00[1]; People v Reed, 22NY3d 530, 534 [2014]; People v Boddie, 126 AD3d 1129, 1132 [2015], lvdenied 26 NY3d 1085 [2015]).
Defendant next argues that County Court abused its discretion by declining to granthis timely request for a missing witness charge. We cannot agree, as he failed to meet hisprima facie burden of establishing that such a charge was warranted. Defendant's soleargument to County Court was that a missing witness charge should be given as to JamesTedeschi because he was present with Taylor and Faulkner at the second altercation andappeared on the People's witness list, but was not called to testify. However, "the merefailure to produce a witness at trial, standing alone, is insufficient to justify the charge"(People v Gonzalez, 68 NY2d 424, 427 [1986]; see People v Turner, 73 AD3d1282, 1284 [2010], lv denied 15 NY3d 896 [2010]; People v Lemke,58 AD3d 1078, 1079 [2009]; People v Smith, 240 AD2d 949, 949 [1997], lvdenied 91 NY2d 880 [1997]). To warrant a missing witness charge, the proponent ofthe charge must establish that "(1) the witness's knowledge is material to the trial; (2) thewitness is expected to give noncumulative testimony; (3) the witness is under the 'control'of the party against whom the charge is sought, so that the witness would be expected totestify in that party's favor; and (4) the witness is available to that party" (DeVito v Feliciano, 22 NY3d159, 165-166 [2013]; see People v Savinon, 100 NY2d 192, 197 [2003];People v Keen, 94 NY2d 533, 539 [2000]). Inasmuch as defendant failed tosatisfy these preconditions, County Court did not err in denying his request.
Defendant's final argument that the People committed a Brady violation byfailing to turn over a recorded phone conversation involves matters outside the recordand is more properly the subject of a motion pursuant to CPL article 440 (see People v Miles, 119 AD3d1077, 1079-1080 [2014], lv denied 24 NY3d 1003 [2014]; People v DeJesus, 110 AD3d1480, 1482 [2013], lv denied 22 NY3d 1155 [2014]).
Peters, P.J., Lahtinen, Lynch and Aarons, JJ., concur. Ordered that the judgment isaffirmed.