PEOPLE v. WEINSHEIMER (2009)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered October 4, 2004, convicting him of burglary in the first degree and sexual abuse in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Hawkins, 11 N.Y.3d 484, 493, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to prove the physical injury element of burglary in the first degree (see Penal Law § 140.30[2];  People v. Palmer, 190 A.D.2d 564, 593 N.Y.S.2d 226;  cf. People v. Hernandez, 82 N.Y.2d 309, 318-319, 604 N.Y.S.2d 524, 624 N.E.2d 661).

 The trial court properly denied the defendant's request for a missing witness charge, as the uncalled witness was equally available to both parties, and was not under the control of the People (see People v. Jean-Baptiste, 37 A.D.3d 852, 829 N.Y.S.2d 919).

 “A presentence report may include any relevant information on the history of the defendant (see CPL 390.30) and may include history not only of prior offenses for which defendant has been convicted, but even offenses for which he has not been convicted” (People v. Whalen, 99 A.D.2d 883, 884, 472 N.Y.S.2d 784).   However, the court “must assure itself that the information upon which it bases the sentence is reliable and accurate” (People v. Outley, 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356).   Here, the trial court properly relied on the information in the presentence investigation report in sentencing the defendant.

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 85, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.