PEOPLE v. BANKS (2000)

Judgment, Supreme Court, Bronx County (Joseph Fisch, J., at hearing;  Nicholas Iacovetta, J., at jury trial and sentence), rendered November 13, 1998, convicting defendant of assault in the second degree and criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 6 years, unanimously affirmed.

 Defendant's suppression motion was properly denied.   The record supports the hearing court's finding that the photographs in the array shown to the complainant were sufficiently similar to avoid drawing attention to defendant.   Any “minor discrepancies in apparent age between the individuals in the six photographs ․ did not impermissibly highlight or distinguish defendant's photograph in any way” (People v. Tapling, 159 A.D.2d 260, 261, 552 N.Y.S.2d 255).

 Defendant's request for a missing witness charge was properly denied, since none of the requirements for such a charge were established.   There was no showing that the witness was in a position to observe the events at issue, the witness's casual friendship with the complainant and his girlfriend did not place her within the People's “control” (see, People v. Brunson, 270 A.D.2d 133, 270 A.D.2d 133, 707 N.Y.S.2d 1), and the People established that the witness was uncooperative and had become unavailable despite reasonable efforts to locate her.

MEMORANDUM DECISION.