People v Fagen, 2015 NY Slip Op 03182 [127 AD3d 990]

April 15, 2015

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Michael Fagen, Appellant.

Bruce R. Bekritsky, Mineola, N.Y., for appellant.

Madeline Singas, Acting District Attorney, Mineola, N.Y. (Yael V. Levy and Ames C. Grawert of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz, J.), rendered June 12, 2013, convicting him of offering a false instrument for filing in the first degree (18 counts) and petit larceny, 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 NY2d 192, 196 [2003]; People v Gonzalez , 68 NY2d 424, 427 [1986]). Contrary to the defendant’s contention, the uncalled witnesses’ testimony would have been cumulative ( see People v Gallardo , 58 AD3d 867 [2009]; People v Iverson , 56 AD3d 491 , 492 [2008]; People v Smith , 49 AD3d 904 , 905-906 [2008]).

To the extent that the defendant contends that the verdict was repugnant or factually inconsistent, his contention is unpreserved for appellate review ( see People v Alfaro , 66 NY2d 985, 987 [1985]; People v Clayborne , 123 AD3d 842 [2014]; People v Watson , 82 AD3d 1276 , 1277 [2011], affd 20 NY3d 182 [2012]). In any event, the verdict was not repugnant or factually inconsistent ( cf. People v DeLee , 24 NY3d 603 , 608-609 [2014]; People v Abraham , 22 NY3d 140 , 146 [2013]).

The defendant’s remaining contentions are without merit. Dillon, J.P., Dickerson, Duffy and Barros, JJ., concur..