| People v Diaz |
| 2017 NY Slip Op 03608 [150 AD3d 423] |
| May 4, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Gregory Diaz, Appellant. |
Stanley Neustadter, Cardozo Appeals Clinic, New York (Peter Lushing of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Justin J. Braun of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J.), rendered January 30, 2015,convicting defendant, after a jury trial, of robbery in the second degree, criminal possession of aweapon in the second degree, criminal possession of a controlled substance in the seventh degreeand unlawful fleeing a police officer in a motor vehicle in the third degree, and sentencing him,as a second felony offender, to an aggregate term of 15 years, unanimously affirmed.
The court providently exercised its discretion in denying defendant's request for a missingwitness charge. The request, which came at a charge conference after defendant had testified andboth sides had rested, was plainly untimely (see People v Gonzalez, 68 NY2d 424, 428[1986]; People v Medina, 35 AD3d163, 163 [1st Dept 2006], lv denied 8 NY3d 925 [2007]), and defendant's presentargument that he could not have made the request earlier is without merit. The People alsoestablished that the witness was unavailable (see People v Savinon, 100 NY2d 192,198-200 [2003]). Although the victim described this witness as a friend, he had not seen or heardfrom him since the incident, long before trial, and the People had no contact information or anystarting point for attempting to locate the witness.
Defendant's arguments regarding the sufficiency and weight of the evidence supporting hisconviction of unlawful fleeing a police officer in a motor vehicle are unavailing. The evidenceestablished defendant's accessorial liability for the conduct of the driver of the car in whichdefendant and the driver fled from the police (see Penal Law § 20.00).There is no basis for disturbing the jury's credibility determinations. Concur—Sweeny,J.P., Gische, Kahn and Gesmer, JJ.