People v. Mingo , 921 N.Y.S.2d 107 ( 2011 )

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Loehr, J.), rendered March 4, 2009, convicting him of criminal possession of a controlled substance in the third degree, escape in the first degree, criminal possession of a controlled substance in the seventh degree, and resisting arrest, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the People’s contention, the defendant preserved his contention that the trial court erred in failing to give a missing witness instruction with respect to a potential witness for the People. Although the trial court should have given a missing witness instruction, the failure to do so was harmless (see People v Crimmins, 36 NY2d 230, 242 [1975]; People v Beltry, 235 AD2d 546 [1997]; compare People v Marsalis, 22 AD3d 866, 869 [2005]).

With respect to the missing witness instruction regarding a witness for the defense, the defendant failed to rebut the People’s prima facie showing that they were entitled to that instruction (see People v Edwards, 14 NY3d 733, 735 [2010]; People v Savinon, 100 NY2d 192, 200-201 [2003]; People v Gonzalez, 68 NY2d 424, 427-431 [1986]). Likewise, since the defendant chose to present affirmative proof in his defense, the fact that he failed to call a material witness under his control was properly brought to the jury’s attention and did not impermissibly shift the burden of proof (see People v Rivera, 292 AD2d 549 [2002]; People v Wood, 271 AD2d 705 [2000]; People v Shaw, 112 AD2d 958, 959-960 [1985]; see generally People v Savinon, 100 NY2d at 199-200).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to .the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

The defendant’s remaining contention is without merit (see People v Halm, 81 NY2d 819, 821 [1993]; People v Tardbania, 72 NY2d 852, 853 [1988]; People v Galloway, 54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d 105, 109 [1976]; People v White, 5 AD3d 511 [2004]; compare People v Williams, 65 AD3d 484, 489 [2009]). Angiolillo, J.P., Florio, Belen and Miller, JJ., concur.