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

251
KA 09-02277
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DESMOND T. MCCULLOUGH, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered September 2, 2009. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree.

     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 assault in the second degree (Penal Law §
120.05 [2]), arising from defendant’s shooting of the victim.
Defendant contends that County Court erred in denying his request for
a missing witness charge. We conclude that any error of the court in
failing to give the missing witness charge is harmless inasmuch as the
evidence of defendant’s guilt is overwhelming, and there is no
significant probability that the jury would have acquitted defendant
but for the alleged error (see People v White, 265 AD2d 843, 844, lv
denied 94 NY2d 868). The overwhelming evidence of defendant’s guilt
included the testimony of three eyewitnesses, all of whom were
personally familiar with defendant. Notably, all three witnesses
testified that the shooting occurred in broad daylight, and that the
assailant was not wearing a mask to cover his face. We reject
defendant’s related contention that the court erred when it precluded
defense counsel from commenting on the missing witness during
summation (see generally People v Miller, 213 AD2d 271, 271, lv denied
86 NY2d 844).

     Finally, we reject defendant’s contention that the court erred in
admitting in evidence a letter purportedly written by defendant. “In
New York, the general rule is that all relevant evidence is admissible
unless its admission violates some exclusionary rule . . . Evidence is
relevant if it has any tendency in reason to prove the existence of
any material fact, i.e., it makes determination of the action more
                                 -2-                           251
                                                         KA 09-02277

probable or less probable than it would without the evidence” (People
v Scarola, 71 NY2d 769, 777). Even relevant evidence, however, may be
held inadmissible in the exercise of the court’s discretion if its
“probative value is substantially outweighed by the danger that it
will unfairly prejudice the other side or mislead the jury” (id.).
Here, we conclude that the probative value of the letter far outweighs
any unfair prejudice inasmuch as it was relevant to the issue of the
shooter’s identity. “[W]hether . . . defendant actually wrote the
letter [goes] to the [evidentiary] weight to be accorded the [letter],
not to its admissibility” (People v Pearce, 81 AD3d 856, 856, lv
denied 16 NY3d 898).




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
