PEOPLE v. MONROE (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered December 20, 2005, convicting him of assault in the first degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (two counts), and menacing in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The issue of whether the defendant's oral statement to the police was sufficiently corroborated by independent evidence that a crime had been committed is unpreserved for appellate review and, in any event, is without merit (see CPL 60.50;  People v. Booden, 69 N.Y.2d 185, 513 N.Y.S.2d 87, 505 N.E.2d 598;  People v. Murray, 40 N.Y.2d 327, 386 N.Y.S.2d 691, 353 N.E.2d 605, cert. denied 430 U.S. 948, 97 S.Ct. 1586, 51 L.Ed.2d 796;  People v. Reade, 13 N.Y.2d 42, 46, 241 N.Y.S.2d 829, 191 N.E.2d 891).   Moreover, the issue as to whether the additional evidence of the crime together with the defendant's confession was legally sufficient to establish the defendant's guilt of assault in the first degree beyond a reasonable doubt is also unpreserved for appellate review and, in any event, is without merit (see Penal Law § 120.10[1] ).

 The trial court properly declined to give a missing witness charge, as the People established that the victim was not in their control and was unavailable to testify (see People v. Bryant, 11 A.D.3d 630, 631, 784 N.Y.S.2d 114).

 The defendant's contention that the trial court's failure to charge the jury in accordance with CPL 60.50 constituted reversible error is unpreserved for appellate review since the defendant never requested such a charge (see CPL 470.05[2];  People v. Schleyer, 236 A.D.2d 835, 836, 654 N.Y.S.2d 70;  People v. Coombs, 184 A.D.2d 651, 652, 587 N.Y.S.2d 169).   In any event, any error was harmless, as there was overwhelming evidence of the defendant's guilt and no significant probability that the error contributed to the convictions (see People v. Rutledge, 286 A.D.2d 962, 730 N.Y.S.2d 761;  People v. Coombs, 184 A.D.2d 651, 587 N.Y.S.2d 169).

The defendant was afforded meaningful representation under both the Federal and State constitutions (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;  People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).