People v. Black

Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered March 30, 1995, convicting defendant, after a jury trial, of two counts of robbery in the first degree and criminal possession of a weapon in the second degree, and sentencing him as a second violent felony offender, to two consecutive terms of 12V2 to 25 years and a concurrent term of 7V2 to 15 years, to be served consecutively to a sentence imposed on another conviction, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that the 12 V2 to 25 year terms run concurrent with each other, and otherwise affirmed.

Defendant’s request for a missing witness charge was properly denied. Defendant failed to make a prima facie demonstration that the witness was available for trial, particularly in light of the trial testimony concerning his disappearance, or that his testimony would not be merely cumulative of the testimony of the other three witnesses who were present in the apartment at the time of the robberies (see, People v Kitching, 78 NY2d 532, 536 ; People v Gonzalez, 68 NY2d 424, 427 ). We also note the overwhelming evidence of guilt.

We find the sentence excessive to the extent indicated. Concur—Rosenberger, J. P., Wallach, Rubin, Tom and Colabella, JJ.