| People v Nguyen |
| 2017 NY Slip Op 09052 [156 AD3d 1461] |
| December 22, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Dawn M.Nguyen, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.),rendered May 19, 2014. The judgment convicted defendant, upon a jury verdict, of falsifyingbusiness records in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict offalsifying business records in the first degree (Penal Law § 175.10). We rejectdefendant's contention that Supreme Court erred in failing to give the jury a missing witnesscharge with respect to defendant's ex-boyfriend (see generally People v Kitching, 78NY2d 532, 536-537 [1991]). Defendant's request for the charge "was untimely because it was notmade until both parties had rested, rather than at the close of the People's proof, when defendantbecame 'aware that the witness would not testify' " (People v Williams, 94 AD3d 1555, 1556 [4th Dept 2012], quotingPeople v Hayes, 261 AD2d 872, 873 [4th Dept 1999], lv denied 93 NY2d 1019[1999]). In any event, we conclude that defendant failed to demonstrate that the witness wasexpected to give noncumulative testimony (see DeVito v Feliciano, 22 NY3d 159, 165-166 [2013]).
We reject defendant's further contention that she was denied a fair trial on the ground that thecourt failed to issue a blanket ruling prohibiting trial spectators from wearing firefighter uniformsand other firefighter attire. The court's ruling permitted no more than 10 spectators in uniform inthe courtroom and no more than three such spectators seated together. We conclude that thecourt's ruling constituted a fair resolution of a decorum issue, did not deny defendant her right toa fair trial, and was not an abuse of discretion (see People v Nelson, 27 NY3d 361, 370 [2016]).
Finally, we reject defendant's contention that the court abused its discretion in admittingcertain text message conversations between defendant and three other people. It is well settledthat a trial court has wide latitude to admit or preclude evidence after weighing its probativevalue against any danger of confusing the main issues, unfairly prejudicing the other side, orbeing cumulative (see People vHalter, 19 NY3d 1046, 1051 [2012]; People v Petty, 7 NY3d 277, 286 [2006]). We perceive no reason todisturb the court's determination that the probative value of the text messages outweighed anysuch danger. Present—Centra, J.P., Peradotto, DeJoseph, NeMoyer and Curran, JJ.