Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Second DepartmentOct 30, 1989
154 A.D.2d 717 (N.Y. App. Div. 1989)
154 A.D.2d 717546 N.Y.S.2d 905

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October 30, 1989

Appeal from the Supreme Court, Kings County (Goldstein, J.).

Ordered that the judgment is affirmed.

Contrary to the defendant's present contention, the prosecution sustained its burden of demonstrating that, after being apprised of the consequences of his failure to appear for trial, the defendant knowingly, voluntarily and intelligently waived his right to be present at trial. Similarly, the Supreme Court did not improvidently exercise its discretion in determining, after a hearing, that the defendant should be tried in absentia (see, People v Sanchez, 65 N.Y.2d 436; cf., People v Parker, 57 N.Y.2d 136).

Equally unavailing is the defendant's claim that he was not afforded proper notice, pursuant to CPL 710.30, of a statement he made to police which was elicited by the prosecution at trial. The record reveals that the version of the statement set forth in the prosecution's CPL 710.30 notice served on the defendant and the version testified to at trial did not differ in any appreciable respect. Accordingly, the notice contained the sum and substance of the challenged statement and adequately provided the defendant with an opportunity to contest its voluntariness (see, People v Bennett, 56 N.Y.2d 837; People v Wilson, 144 A.D.2d 980). We further note in this regard that while the defendant objected to the version of the statement testified to at trial, he failed to challenge its voluntariness or articulate any specific manner in which it was prejudicial to his defense.

Finally, we conclude that the Supreme Court properly denied the defendant's request for a missing witness charge with respect to his codefendant. There is simply no evidence in the record to demonstrate that the codefendant was in the prosecution's "`control'" (People v Gonzalez, 68 N.Y.2d 424, 429). Bracken, J.P., Sullivan, Harwood and Rosenblatt, JJ., concur.