People v Smalls
2011 NY Slip Op 00711 [81 AD3d 669]
February 1, 2011
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 30, 2011


The People of the State of New York, Respondent,
v
William Smalls, Appellant.

[*1] Lynn W. L. Fahey, New York, N.Y. (John Gemmill of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered November 5, 2008, convicting him of attempted assault in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant was not deprived of a fair trial by the Supreme Court's denial of his request for a missing witness charge (see People v Gonzalez, 68 NY2d 424, 427-428 [1986]; People v Vera, 11 AD3d 716 [2004]). In any event, even if the Supreme Court erred in denying the defendant's request for a missing witness charge, any error was harmless, as there was overwhelming evidence of the defendant's guilt and no significant probability that the error contributed to his conviction (see People v Crimmins, 36 NY2d 230, 241-242 [1975]). Angiolillo, J.P., Hall, Roman and Cohen, JJ., concur.