PEOPLE v. McFADDEN (2002)

Judgment, Supreme Court, Bronx County (Alexander Hunter, J.), rendered September 2, 1998, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 15 years, unanimously affirmed.

 The court properly denied defendant's request for a missing witness charge as to two individuals.   Although the court failed to make any determinations as to such relevant factors as timeliness of application, control, availability, materiality and cumulativeness (see People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583), and summarily denied the application without hearing from the People on any of these issues, the record is sufficient for this Court to make its own findings (see People v. Jones, 247 A.D.2d 272, 667 N.Y.S.2d 905, lv. denied 92 N.Y.2d 927, 680 N.Y.S.2d 468, 703 N.E.2d 280;  see also People v. Brady, 16 N.Y.2d 186, 189, 264 N.Y.S.2d 361, 211 N.E.2d 815).   Defendant's motion was extremely untimely in that it was made after the court had charged the jury.   Furthermore, there is no indication that either witness could have been expected to provide noncumulative testimony.   In any event, were we to find any error, we would find the error to be harmless in light of the overwhelming evidence of defendant's guilt.

 The record establishes that defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584).   Defendant was not deprived of effective assistance by his trial counsel's decision not to request a jury instruction on the affirmative defense to first-degree robbery, since it was a reasonable strategy to forgo that defense and rely entirely on defendant's complete denial of guilt (People v. Guzman, 276 A.D.2d 262, 714 N.Y.S.2d 201, lv. denied 95 N.Y.2d 935, 721 N.Y.S.2d 611, 744 N.E.2d 147;  People v. Sanchez, 244 A.D.2d 284, 664 N.Y.S.2d 447, lv. denied 91 N.Y.2d 897, 669 N.Y.S.2d 11, 691 N.E.2d 1037).

We perceive no basis for reducing the sentence.

We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.