The People, etc., respondent, v. David Read, appellant. (2012)

Submitted—April 24, 2012

DECISION & ORDER

Appeals by the defendant from (1) a judgment of the County Court, Rockland County (Nelson, J.), rendered December 15, 2010, convicting him of aggravated criminal contempt in the first degree, criminal contempt in the first degree, and assault in the third degree, under Indictment No. 424/08, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court, also rendered December 15, 2010, convicting him of criminal contempt in the first degree under Indictment No. 261/09, upon a jury verdict, and imposing sentence.

ORDERED that the judgments are affirmed.

On July 31, 2008, the defendant was arrested after he assaulted his wife, who had a valid order of protection against him.   He was charged under Indictment No. 424/08 with aggravated criminal contempt in the first degree, criminal contempt in the first degree, and assault in the third degree, and, after a jury trial, was convicted of all three crimes.

On April 27, 2009, the defendant made various threats against his wife in the presence of police officers.   Thereafter, he was charged under Indictment No. 261/09 with two counts of criminal contempt in the first degree.   After a jury convicted him of the second count, the first count of the indictment was dismissed on consent.

On appeal, the defendant contends that the trial court erred during both trials in denying his request for a missing witness charge with respect to his wife, who did not testify in either trial.   We note that the People cannot raise the issue of the alleged untimeliness of the defendant's requests for a missing witness charge for the first time on appeal (see People v. Jones, 23 AD3d 399;  People v. Young, 4 AD3d 441, 441–442), and, in any event, the requests were not untimely (see e.g. People v. Gonzalez, 68 N.Y.2d 424, 426).   We find, however, that the trial court properly denied the defendant's request in both instances, as the record reflects that his wife was not under the People's control (see People v. Monroe, 49 AD3d 900, 901;  People v. Royster, 18 AD3d 375, 375–376;  People v. Coleman, 306 A.D.2d 941, 942).

With respect to the trial under Indictment No. 424/08, the defendant contends that the court erred in failing to provide a moral certainty charge.   This contention is unpreserved for appellate review (see People v. Finkelstein, 75 AD3d 652, 653;  People v. Wynn, 198 A.D.2d 136;  People v. Troy, 162 A.D.2d 744), and is also waived (see People v. Cleophus, 81 AD3d 844, 846;  People v. Boone, 269 A.D.2d 459, 459–460).   In any event, a moral certainty charge was unwarranted in this case, because both direct and circumstantial evidence were presented to establish the defendant's culpability (see People v. Barnes, 50 N.Y.2d 375, 379–381;  People v. Hinton, 285 A.D.2d 476, 476–477;  People v. Wynn, 198 A.D.2d at 136;  People v. Troy, 162 A.D.2d at 744).

The defendant's contention, also with respect to the trial under Indictment No. 424/08, that certain statements made by the prosecutor during summation constituted reversible error is unpreserved for appellate review.   Defense counsel either did not object to the remarks at issue or made a general one-word objection, and his motion for a mistrial, made after the completion of summations, was untimely (see People v. Malave, 7 AD3d 542;  People v. Davis, 272 A.D.2d 408;  People v. Bruen, 136 A.D.2d 648, 649).   In any event, the contention is without merit (see People v. Thompson, 81 AD3d 670, 672–673, lv granted 18 NY3d 998;  People v. Franklin, 64 AD3d 614, 615;  People v. Diaz, 59 AD3d 459, 460).

The defendant's contention that reversal of his conviction under Indictment No. 261/09 is warranted because the People allegedly failed to turn over certain material pursuant to People v. Rosario (9 N.Y.2d 286, cert denied 368 U.S. 866) is unpreserved for appellate review (see People v. Kelley, 73 AD3d 809, 810;  People v. Seaton, 45 AD3d 875, 876).   In any event, the record reflects that the material was in fact provided to the defendant's trial counsel.

Lastly, the defendant's contention that he received ineffective assistance of counsel under the federal constitutional standard (see Strickland v. Washington, 466 U.S. 668) with respect to the trial under Indictment No. 261/09 is without merit.

DILLON, J.P., LEVENTHAL, HALL and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court