[*1]
People v Klass (Joseph)
2015 NY Slip Op 50899(U) [47 Misc 3d 156(A)]
Decided on June 17, 2015
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 17, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570463/13

The People of the State of New York, Respondent,

against

Joseph Klass, Defendant-Appellant,


Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (John Cataldo, J.H.O.), rendered May 29, 2013, after a nonjury trial, convicting him of public urination in facilities operated by the Metropolitan Transportation Authority, and imposing sentence.

Per Curiam.

Judgment of conviction (John Cataldo, J.H.O.), rendered May 29, 2013, affirmed.

The verdict convicting defendant of public urination in facilities operated by the Metropolitan Transportation Authority (see Administrative Code 16-118[6]) was supported by legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the trial court's determinations concerning credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]).

Defendant's claim that the denial of his request for a missing witness charge deprived him of his due process right to a fair trial, is unpreserved (see CPL 470.05[2]). Although defense counsel made a generalized reference to a witness "who should have been produced here," he never requested a missing witness charge (see People v Dell, 11 AD3d 631, 632 [2004], lv denied 4 NY3d 762 [2005]). In any event, as the defendant did not make a request for such a charge at trial, the record contains no discussions concerning this matter, a fact which precludes appellate review of this particular issue (see People v Gonzalez, 68 NY2d 424, 428 [1986]; People v Hernandez, 74 AD3d 839 [2010], lv denied 15 NY3d 805 [2010]; People v Watson, 245 AD2d 87 [1997]).


Defendant's further contention that the trial court acted as a prosecutor and deprived him of his constitutional right to a fair trial (see People v Kello, 96 NY2d 740 [2001]), is similarly unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits (see People v DeLeyden, 10 NY2d 293 [1961]; People v Hightower, 29 Misc 3d 131[A], 2010 NY Slip Op 51882[U] [App Term, 1st Dept 2010], lv denied 16 NY3d 831 [2011]; cf People v Arnold, 98 NY2d 63 [2002]).

We are unpersuaded that the sentence imposed - payment of a $125 fine - was unduly harsh or severe.


[*2]THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur


Decision Date: June 17, 2015