People v Smith, 2017 NY Slip Op 00327 [146 AD3d 905]

January 18, 2017

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Patrick Smith, Appellant.

Thomas R. Villecco, Jericho, NY, for appellant.

Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Virginia A. Marciano, Laurie Sapakoff, and Steven A. Bender of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (Neary, J.), rendered March 5, 2014, convicting him of murder in the second degree (two counts), kidnapping in the first degree, robbery in the second degree, and unlawful imprisonment in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that his half brother was not “available” and, thus, that the County Court erred in granting the People’s request for a missing witness charge, is unpreserved for appellate review, as that argument was not raised before the County Court ( see CPL 470.05 [2]). In any event, the court properly gave a missing witness charge as to the defendant’s half brother, who was not called to testify on the defendant’s behalf. The defendant’s testimony tended to establish an alibi defense, and the defendant’s failure to call the available witness to support his alibi was properly brought to the attention of the jury, inasmuch as it appeared that the witness’s testimony would be favorable to the defense and his testimony would not have been trivial or cumulative ( see People v Savinon , 100 NY2d 192, 197 [2003]; People v Smith , 240 AD2d 600, 601 [1997]; see also People v Days , 131 AD3d 972 , 974 [2015]; People v Blackledge , 129 AD3d 412 , 412 [2015]; People v Dantzler , 53 AD3d 504 , 504 [2008]). Chambers, J.P., Roman, Miller and Barros, JJ., concur..