People v. Villa

Judgment unanimously affirmed. Memorandum: There is no merit to defendant’s contention that the trial court erred by refusing to give a missing witness charge with respect to the People’s failure to call Luis Davila as a witness. Defendant failed to establish that Davila was knowledgeable about a material issue in the case and that he would be expected to testify favorably to the People (see, People v Gonzalez, 68 NY2d 424, 427-428).

Defendant’s conviction is supported by legally sufficient evidence (see, People v McManus, 67 NY2d 541, 545; People v Gomez, 65 NY2d 9,10-11). Defendant’s challenge to the court’s refusal to charge criminally negligent homicide (see, Penal Law § 125.10) as a lesser included offense of murder in the second degree (see, Penal Law § 125.25 [2]) is foreclosed by reason of the jury’s verdict of guilty of murder in the second degree, the crime alleged in the indictment, and its implicit rejection of the charged lesser included offenses of first and second degree manslaughter (see, People v Boettcher, 69 NY2d 174, 180; People v Kern, 149 AD2d 187, 238, affd 75 NY2d 638); People v Feris, 144 AD2d 691).

We have reviewed defendant’s remaining contentions, in-eluding those raised in his supplemental pro se brief, and we find them to be either unpreserved for our review or, where preserved, lacking in merit. (Appeal from judgment of Onondaga County Court, Cunningham, J.—murder, second degree.) Present—Dillon, P. J., Green, Lawton, Davis and Lowery, JJ.