People v. Silvestre

People v Silvestre (2020 NY Slip Op 05827)

People v Silvestre

2020 NY Slip Op 05827

Decided on October 15, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 15, 2020
Before: Friedman, J.P., Manzanet-Daniels, Kern, Moulton, JJ.
Ind No. 2777/10 Appeal No. 12092 Case No. 2016-940

Janet E. Sabel, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered November 12, 2013, convicting defendant, after a jury trial, of two counts each of criminal sale of a controlled substance in the first and second degrees, and sentencing him to an aggregate term of 10 years, unanimously affirmed.

The court providently exercised its discretion in denying as untimely defendant's request for a missing witness charge as to a confidential informant. Defendant made the request long after both sides had rested, and more than a month after the People's pretrial announcement that they were not going to call the witness (see People v Carr, 14 NY3d 808 [2010]; People v Torres, 169 AD3d 506 [2019], lv denied 33 NY3d 981 [2019]). In any event, assuming that defendant met his initial burden, the People met

their burden of showing that the witness's testimony would have been cumulative (see People v Smith, 33 NY3d 454, 458-59 [2019]), and the court properly denied the instruction on that basis as well.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 15, 2020