           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
555
KA 07-02085
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

MAURICE A. HAWKINS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered August 24, 2007. The judgment
convicted defendant, upon a jury verdict, of attempted murder in the
second degree, assault in the first degree, and burglary in the first
degree.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of attempted murder in the second degree (Penal Law §§ 110.00,
125.25 [1]), assault in the first degree (§ 120.10 [1]), and burglary
in the first degree (§ 140.30 [1], [2], [4]), defendant contends that
Supreme Court abused its discretion in denying his request for a
missing witness charge. We reject that contention (see People v
Savinon, 100 NY2d 192, 197). Even assuming, arguendo, defendant met
his initial burden in support of his request for that charge by
showing, inter alia, that the potential witness would be knowledgeable
concerning a material issue at trial and would be expected to provide
testimony that would be favorable to the People (see People v
Gonzalez, 68 NY2d 424, 427-428), we conclude that the People met their
burden of establishing “that the charge would not be appropriate” (id.
at 428). The prosecutor established that the missing witness would
have provided certain testimony that was cumulative to that of other
witnesses (see People v White, 265 AD2d 843, 843-844, lv denied 94
NY2d 868), and that the witness otherwise would not be expected to
provide testimony that was favorable to the People’s case (see People
v Wilson, 256 AD2d 637, 638, lv denied 93 NY2d 880; People v
Congilaro, 159 AD2d 964, 965, lv denied 76 NY2d 786).

Entered:   May 6, 2011                             Patricia L. Morgan
                                                   Clerk of the Court
