PEOPLE v. GARNER (2008)

 On appeal from a judgment convicting him, following a jury trial, of robbery in the first degree (Penal Law § 160.15[4] ), robbery in the second degree (§ 160.10[1] ) and intimidating a victim or witness in the third degree (§ 215.15[1] ), defendant contends that the evidence is legally insufficient to support the conviction.   We reject that contention (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We also reject defendant's contention that the verdict is against the weight of the evidence (see generally id.).   Where, as here, witness credibility is of paramount importance, we accord “[g]reat deference ․ to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor” (id.).   Defendant failed to preserve for our review his further contention that he was denied a fair trial based on prosecutorial misconduct (see People v. Bones, 50 A.D.3d 1527, 856 N.Y.S.2d 408), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

 We conclude that Supreme Court properly allowed the People to cross-examine defendant's alibi witnesses concerning their pretrial silence inasmuch as the People established an appropriate foundation for that questioning (see People v. Dawson, 50 N.Y.2d 311, 321, 428 N.Y.S.2d 914, 406 N.E.2d 771;  People v. Cain, 9 A.D.3d 827, 828, 779 N.Y.S.2d 698, lv. denied 3 N.Y.3d 671, 784 N.Y.S.2d 10, 817 N.E.2d 828).   The court also properly allowed the People to treat a prosecution witness as a hostile witness (see People v. Smith, 286 A.D.2d 878, 730 N.Y.S.2d 893, lv. denied 98 N.Y.2d 641, 744 N.Y.S.2d 770, 771 N.E.2d 843;  People v. Davis, 163 A.D.2d 826, 558 N.Y.S.2d 358, lv. denied 76 N.Y.2d 939, 563 N.Y.S.2d 68, 564 N.E.2d 678).   Inasmuch as defendant failed to request a missing witness charge until after the close of proof, his request was properly denied as untimely (see People v. France, 265 A.D.2d 424, 697 N.Y.S.2d 628, lv. denied 94 N.Y.2d 823, 702 N.Y.S.2d 593, 724 N.E.2d 385).   Finally, we conclude that the court did not abuse its discretion in denying defendant's request for youthful offender status (see People v. Pappas, 198 A.D.2d 918, 604 N.Y.S.2d 466, lv. denied 82 N.Y.2d 928, 610 N.Y.S.2d 180, 632 N.E.2d 490;  see generally People v. Drayton, 39 N.Y.2d 580, 584, 385 N.Y.S.2d 1, 350 N.E.2d 377, rearg. denied 39 N.Y.2d 1058, 387 N.Y.S.2d 1033, 355 N.E.2d 393), and that the sentence is not unduly harsh or severe.

Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted of intimidating a victim or witness in the third degree under Penal Law § 215.15(4), and it must therefore be amended to reflect that he was convicted under Penal Law § 215.15(1) (see People v. Saxton, 32 A.D.3d 1286, 821 N.Y.S.2d 353).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: