Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James D. Gibbons, J.), rendered March 27, 2008, convicting him, after a jury trial, of assault in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (James D. Gibbons, J.), rendered March 27, 2008, affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]). There is no basis for disturbing the jury's determinations concerning credibility, and, based on the weight of the credible trial evidence, the jury was justified in finding defendant guilty beyond a reasonable doubt (see id. at 348). Moreover, the trial court properly denied defendant's request for a missing witness instruction with respect to the former boyfriend of the complainant, since that witness was neither available nor under the control of the People (see generally People v Gonzalez, 68 NY2d 424 [1986]; People v Abelson, 27 AD3d 301 [2006]). Additionally, defendant failed to demonstrate that the witness would have been expected to provide non-cumulative testimony favorable to the People (see People v Macana, 84 NY2d 173 [1994]; People v Gonzalez, supra). In any event, any error in the denial of defendant's request for that instruction was harmless (see People v Douglas, 304 AD2d 458 [2003], lv denied 100 NY2d 580 [2003]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur





<
head>Schoenfeld, J.P., Shulman, Hunter, Jr., JJ. T
he People of the State of New York, NY County Clerk's No.
Respondent,570334/08 -
against-
Julio Gomez Garcia,Calendar No. 09-209
Defendant-Appellant.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James D. Gibbons, J.), rendered March 27, 2008, convicting him, after a jury trial, of assault in the third degree, and imposing sentence.
Per Curiam.
Judgment of conviction (James D. Gibbons, J.), rendered March 27, 2008, affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]). There is no basis for disturbing the jury's determinations concerning credibility, and, based on the weight of the credible trial evidence, the jury was justified in finding defendant guilty beyond a reasonable doubt (see id. at 348). Moreover, the trial court properly denied defendant's request for a missing witness instruction with respect to the former boyfriend of the complainant, since that witness was neither available nor under the control of the People (see generally People v Gonzalez, 68 NY2d 424 [1986]; People v Abelson, 27 AD3d 301 [2006]). Additionally, defendant failed to demonstrate that the witness would have been expected to provide non-cumulative testimony favorable to the People (see People v Macana, 84 NY2d 173 [1994]; People v Gonzalez, supra). In any event, any error in the denial of defendant's request for that instruction was harmless (see People v Douglas, 304 AD2d 458 [2003], lv denied 100 NY2d 580 [2003]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 12, 2010

NOVEMBER 12, 2010
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
								October 2010 Term

Decision Date: November 12, 2010