PEOPLE v. VERA

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

The PEOPLE, etc., respondent, v. Carlos VERA, appellant.

Decided: October 25, 2004

FRED T. SANTUCCI, J.P., THOMAS A. ADAMS, WILLIAM F. MASTRO, and ROBERT A. SPOLZINO, JJ. John F. Clennan, Ronkonkoma, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Farneti, J.), rendered April 9, 2002, convicting him of gang assault in the first degree and assault in the second 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. 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 establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

The prosecutor's opening statement adequately described what the People intended to prove, and properly prepared the jury to resolve the factual issues of the trial (see CPL 260.30[3];  People v. Kurtz, 51 N.Y.2d 380, 384, 434 N.Y.S.2d 200, 414 N.E.2d 699, cert. denied 451 U.S. 911, 101 S.Ct. 1983, 68 L.Ed.2d 301;  People v. Etoria, 266 A.D.2d 559, 699 N.Y.S.2d 121;  People v. Carter, 248 A.D.2d 722, 670 N.Y.S.2d 542;  People v. Vulpis, 173 A.D.2d 582, 570 N.Y.S.2d 165;  People v. Brown, 158 A.D.2d 461, 550 N.Y.S.2d 913, cert. denied 498 U.S. 870, 111 S.Ct. 190, 112 L.Ed.2d 153;  People v. Tzatzimakis, 150 A.D.2d 512, 541 N.Y.S.2d 106;  see also Matter of Timothy L., 71 N.Y.2d 835, 837-838, 527 N.Y.S.2d 734, 522 N.E.2d 1032).

The trial court properly declined to give the jury a missing witness charge.   The defendant failed to meet his burden of establishing prima facie entitlement to a missing witness charge, as there was no evidence that the uncalled witnesses had knowledge of a material issue or could provide noncumulative testimony (see People v. Wright, 2 A.D.3d 546, 547, 767 N.Y.S.2d 876;  People v. Zimmerman, 309 A.D.2d 824, 765 N.Y.S.2d 524;  People v. Johnson, 297 A.D.2d 822, 823, 748 N.Y.S.2d 55;  People v. Jackson, 287 A.D.2d 520, 731 N.Y.S.2d 393;  People v. Herrera, 285 A.D.2d 613, 614, 728 N.Y.S.2d 745;  People v. Profit, 200 A.D.2d 639, 606 N.Y.S.2d 745).

The defendant's contention that his conviction was the product of a compromise verdict is without merit (see Harris v. Rivera, 454 U.S. 339, 345-347, 102 S.Ct. 460, 70 L.Ed.2d 530;  People v. Farrell, 190 A.D.2d 746, 747, 593 N.Y.S.2d 333;  People v. Alfaro, 108 A.D.2d 517, 489 N.Y.S.2d 546, affd. 66 N.Y.2d 985, 499 N.Y.S.2d 378, 489 N.E.2d 1280).

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