PEOPLE v. FLOWERS (2000)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. John FLOWERS, Appellant.

Decided: August 07, 2000

CORNELIUS J. O'BRIEN, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN, and HOWARD MILLER, JJ.

M. Sue Wycoff, New York, N.Y. (Edward S. Graves of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, and Phyllis Mintz of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.), rendered September 19, 1997, convicting him of attempted murder in the second degree (three counts), criminal possession of a weapon in the second degree, and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was not entitled to a missing witness charge with respect to one of the victims. A paralegal from the Brooklyn District Attorney's Office gave detailed testimony regarding her diligent but fruitless efforts to locate that victim. The Supreme Court therefore properly denied the defendant's request for the charge on the ground that the witness was unavailable to the People (see, People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583). Further, the Supreme Court properly denied his request for such a charge with respect to one of the police officers who responded to the scene, since the testimony of that officer would have been cumulative (see, People v. Gonzalez, supra).

The defendant's remaining contention is unpreserved for appellate review.

MEMORANDUM BY THE COURT.

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