People v. Smith

Judgment, Supreme Court, New York County (Ira Beal, J.), rendered October 2, 2001, convicting defendant, after a jury trial, of three counts of criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to concurrent terms of 2 to 4 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of identification and credibility, including the weight to be given to inconsisten*304cies, were properly considered by the jury and there is no basis for disturbing its determinations (see People v Bleakley, 69 NY2d 490 [1987]).

The court properly denied defendant’s request for a missing witness charge, since defendant failed to establish that the witness’s knowledge was material to the issues to be resolved at trial, given that defendant was charged with criminal possession of stolen property and not with the actual theft of that property (see People v Dianda, 70 NY2d 894 [1987]; People v McCalvin, 309 AD2d 516 [2003], lv denied 1 NY3d 576 [2003]). Concur—Tom, J.P., Saxe, Ellerin and Lerner, JJ.