PEOPLE v. GALLARDO

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

The PEOPLE, etc., respondent, v. Bernard GALLARDO, appellant.

Decided: January 27, 2009

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ. Lynn W.L. Fahey, New York, N.Y. (Katherine R. Schaefer of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Ayelet Sela of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered April 24, 2007, convicting him of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The trial court providently exercised its discretion in declining to give a missing witness instruction to the jury (see People v. Savinon, 100 N.Y.2d 192, 196, 761 N.Y.S.2d 144, 791 N.E.2d 401;  People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583).   Contrary to the defendant's contentions, the witness's testimony would have been cumulative (see People v. Rivera, 249 A.D.2d 141, 672 N.Y.S.2d 32;  People v. Tate, 199 A.D.2d 291, 604 N.Y.S.2d 252), and the People demonstrated that they made diligent efforts to find the witness, but could not locate her (see People v. Williams, 47 A.D.3d 854, 849 N.Y.S.2d 633;  People v. Lubrano, 43 A.D.3d 829, 844 N.Y.S.2d 319;  People v. Rivera, 249 A.D.2d 141, 672 N.Y.S.2d 32;  People v. Skaar, 225 A.D.2d 824, 638 N.Y.S.2d 846;  People v. Aguirre, 201 A.D.2d 485, 607 N.Y.S.2d 398).

 The trial court's instructions regarding the defense of justification (see Penal Law § 35.15) were properly focused on the charges related to the second victim, and provided the jury with the correct rules to be applied in arriving at its verdict (see People v. Ladd, 89 N.Y.2d 893, 895, 653 N.Y.S.2d 259, 675 N.E.2d 1211).   The court need not marshal the evidence except to the extent necessary to explain the application of the law to the facts of the case, and is not required to explain all the contentions of the parties or outline all the inconsistencies in the evidence (see CPL 300.10 [2];  People v. Saunders, 64 N.Y.2d 665, 667, 485 N.Y.S.2d 250, 474 N.E.2d 610).

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