PEOPLE v. THOMAS (1999)

Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered April 18, 1996, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a term of 3 1/212 to 7 years, unanimously affirmed.

The verdict was not against the weight of the evidence.   We perceive no reason to disturb the jury's credibility findings.

 Defendant opened the door to the prosecutor's questions concerning his prior familiarity with and use of guns (see, People v. Hicks, 226 A.D.2d 189, 190, 641 N.Y.S.2d 10, lv. denied 88 N.Y.2d 966, 647 N.Y.S.2d 720, 670 N.E.2d 1352), and the court's limiting instruction prevented any prejudice to defendant.

 The court properly gave a missing witness charge concerning a material witness who was available and under defendant's control within the meaning of People v. Gonzalez, 68 N.Y.2d 424, 427-428, 509 N.Y.S.2d 796, 502 N.E.2d 583.   Contrary to defendant's argument, he did not establish the unavailability of the witness, whose current address was concededly known to defendant.   Moreover, the court's fair and balanced instruction directed the jury not to draw an unfair inference against defendant unless it was satisfied as to control and availability.

We perceive no abuse of sentencing discretion.

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

MEMORANDUM DECISION.