PEOPLE v. FARR (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Greenberg, J.), rendered June 17, 1997, convicting him of murder in the second degree, attempted assault in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contentions, his conviction of criminal possession of a weapon in the second degree is not a concurrent inclusory count of either the conviction of murder in the second degree or attempted assault in the first degree (see, People v. Pons, 68 N.Y.2d 264, 508 N.Y.S.2d 403, 501 N.E.2d 11;  People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463;  People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376;   People v. Green, 56 N.Y.2d 427, 452 N.Y.S.2d 389, 437 N.E.2d 1146;  People v. Perez, 45 N.Y.2d 204, 408 N.Y.S.2d 343, 380 N.E.2d 174;  People v. Mitchell, 216 A.D.2d 863, 628 N.Y.S.2d 914;  People v. Laboy, 208 A.D.2d 954, 618 N.Y.S.2d 86;  People v. Lee, 196 A.D.2d 509, 601 N.Y.S.2d 20;   People v. Sykes, 194 A.D.2d 502, 599 N.Y.S.2d 566;  People v. McGriff, 123 A.D.2d 646, 506 N.Y.S.2d 910;  People v. Davis, 95 A.D.2d 837, 463 N.Y.S.2d 876).

 The trial court properly denied the defendant's request for a missing witness charge, since the record demonstrates that the witnesses in question were not knowledgeable about any material issue (see, People v. Kitching, 78 N.Y.2d 532, 577 N.Y.S.2d 231, 583 N.E.2d 944;  People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583).

 The defendant's claim that his case was unduly prejudiced when the Trial Judge permitted the victim's wife to testify while her child was seated on her lap, is equally without merit (see, People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794;  People v. Yut Wai Tom, 53 N.Y.2d 44, 439 N.Y.S.2d 896, 422 N.E.2d 556;  People v. Caballero, 242 A.D.2d 337, 661 N.Y.S.2d 980;  People v. Caban, 224 A.D.2d 705, 638 N.Y.S.2d 966;  People v. Hayden, 221 A.D.2d 367, 368, 633 N.Y.S.2d 375;  People v. Robinson, 137 A.D.2d 564, 524 N.Y.S.2d 304).

The defendant's remaining contention is without merit.

MEMORANDUM BY THE COURT.