        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

463
KA 13-01460
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALLEN CEHFUS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (EVAN HANNAY OF COUNSEL),
FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered May 23, 2013. The judgment convicted defendant,
upon a jury verdict, of driving while intoxicated, a class E felony,
aggravated unlicensed operation of a motor vehicle in the first degree
and resisting arrest.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of driving while intoxicated, a class E felony
(Vehicle and Traffic Law § 1192 [3]), aggravated unlicensed operation
of a motor vehicle in the first degree (§ 511 [3] [a]), and resisting
arrest (Penal Law § 205.30).

      We reject defendant’s contention that County Court erred in
denying his request for a missing witness charge. Defendant failed to
establish that the witness’s testimony would have been noncumulative
(see People v Welch, 307 AD2d 776, 777-778, lv denied 100 NY2d 625),
and defendant’s assertion that the witness “presumably” could have
provided noncumulative testimony is speculative (see People v
Gonzalez, 16 AD3d 283, 284, lv denied 5 NY3d 766). In any event, we
conclude that any error in the court’s refusal to give a missing
witness charge is harmless inasmuch as the evidence of defendant’s
guilt is overwhelming, and there is no significant probability that
defendant would have been acquitted but for the error (see People v
Fields, 76 NY2d 761, 763; People v Comfort, 31 AD3d 1110, 1112, lv
denied 7 NY3d 847; see generally People v Crimmins, 36 NY2d 230, 241-
242).

     We reject defendant’s further contention that the court issued an
erroneous jury instruction. “Generally, in determining whether a jury
                                 -2-                           463
                                                         KA 13-01460

charge was proper, the test is ‘whether the jury, hearing the whole
charge, would gather from its language the correct rules which should
be applied’ . . . Parts of jury charges cannot be read ‘alone and in a
vacuum’ ” (People v McDaniels, 19 AD3d 1071, 1071, lv denied 5 NY3d
830). Considering the adequacy of the jury charge as a whole against
the background of the evidence presented at the trial (see People v
Andujas, 79 NY2d 113, 118), we conclude that the charge here was
proper (see People v Waldriff, 46 AD3d 1448, 1448, lv denied 9 NY3d
1040; see also People v Fisher, 101 AD3d 1786, 1787, lv denied 20 NY3d
1098).

     Finally, contrary to defendant’s assertion, New York’s persistent
felony offender statute is constitutional on its face and as applied
in this case (see People v Battles, 16 NY3d 54, 59, cert denied ___ US
___, 132 S Ct 123; People v Tuszynski, 120 AD3d 1568, 1569, lv denied
25 NY3d 954), and the court did not abuse its discretion in sentencing
defendant as a persistent felony offender (see People v Boykins, 134
AD3d 1542, 1543).




Entered:   June 10, 2016                       Frances E. Cafarell
                                               Clerk of the Court
