| People v Cehfus |
| 2016 NY Slip Op 04542 [140 AD3d 1644] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAllen Cehfus, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Evan Hannay of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered May 23, 2013. The judgment convicted defendant, upon a jury verdict, ofdriving while intoxicated, a class E felony, aggravated unlicensed operation of a motorvehicle in the first degree and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of driving while intoxicated, a class E felony (Vehicle and Traffic Law§ 1192 [3]), aggravated unlicensed operation of a motor vehicle in the firstdegree (§ 511 [3] [a]), and resisting arrest (Penal Law§ 205.30).
We reject defendant's contention that County Court erred in denying his request for amissing witness charge. Defendant failed to establish that the witness's testimony wouldhave been noncumulative (see People v Welch, 307 AD2d 776, 777-778 [2003],lv denied 100 NY2d 625 [2003]), and defendant's assertion that the witness"presumably" could have provided noncumulative testimony is speculative (see People v Gonzalez, 16AD3d 283, 284 [2005], lv denied 5 NY3d 766 [2005]). In any event, weconclude that any error in the court's refusal to give a missing witness charge is harmlessinasmuch as the evidence of defendant's guilt is overwhelming, and there is nosignificant probability that defendant would have been acquitted but for the error (seePeople v Fields, 76 NY2d 761, 763 [1990]; People v Comfort, 31 AD3d 1110, 1112 [2006], lvdenied 7 NY3d 847 [2006]; see generally People v Crimmins, 36 NY2d 230,241-242 [1975]).
We reject defendant's further contention that the court issued an erroneous juryinstruction. "Generally, in determining whether a jury charge was proper, the test is'whether the jury, hearing the whole charge, would gather from its language the correctrules which should be applied' . . . Parts of jury charges cannot be read'alone and in a vacuum' " (People v McDaniels, 19 AD3d 1071, 1071 [2005], lvdenied 5 NY3d 830 [2005]). Considering the adequacy of the jury charge as a wholeagainst the background of the evidence presented at the trial (see People vAndujas, 79 NY2d 113, 118 [1992]), we conclude that the charge here was proper(see People v Waldriff, 46AD3d 1448, 1448 [2007], lv denied 9 NY3d 1040 [2008]; see also People v Fisher, 101AD3d 1786, 1787 [2012], lv denied 20 NY3d 1098 [2013]).
Finally, contrary to defendant's assertion, New York's persistent felony offenderstatute is constitutional on its face and as applied in this case (see People v Battles, 16 NY3d54, 59 [2010], cert denied 565 US &mdash, 132 S Ct 123 [2011]; People v Tuszynski, 120AD3d 1568, 1569 [2014], lv denied 25 NY3d 954 [2015]), and the court didnot abuse its discretion in sentencing defendant as a persistent felony offender (see People v Boykins, 134AD3d 1542, 1543 [2015]). Present—Peradotto, J.P., Carni, Lindley, Curranand Troutman, JJ.