PEOPLE v. BROWN (1997)

Judgment, Supreme Court, New York County (Thomas Galligan, J.), rendered July 12, 1994, convicting defendant, after a jury trial, of attempted murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 6 to 18 years and 4 to 12 years, unanimously affirmed.

The verdict was not against the weight of the evidence.   We see no reason to disturb the jury's credibility determinations (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).

The court properly granted the People's request for a missing witness charge with regard to defendant's girlfriend, who was under the control of defendant and whose noncumulative testimony on the issue of defendant's whereabouts at the time the crime was committed would have been material to the defendant's alibi defense (see, People v. Rodriguez, 38 N.Y.2d 95, 101, 378 N.Y.S.2d 665, 341 N.E.2d 231;  see also, People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583).   Defendant's explanation for failing to call the witness was inadequate, given the potential significance of her testimony.

MEMORANDUM DECISION.