People v. Fagen

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz, J.), rendered June 12, 2013, convicting him of offering a false instrument for filing in the first degree (18 counts) and petit larceny, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The trial court providently exercised its discretion in declining to give a missing witness instruction to the jury (see People v Savinon, 100 NY2d 192, 196 [2003]; People v Gonzalez, 68 NY2d 424, 427 [1986]). Contrary to the defendant’s contention, the uncalled witnesses’ testimony would have been cumulative (see People v Gallardo, 58 AD3d 867 [2009]; People v Iverson, 56 AD3d 491, 492 [2008]; People v Smith, 49 AD3d 904, 905-906 [2008]). To the extent that the defendant contends that the verdict was repugnant or factually inconsistent, his contention is unpreserved for appellate review (see People v Alfaro, 66 NY2d 985, 987 [1985]; People v Clayborne, 123 AD3d 842 [2014]; People v Watson, 82 AD3d 1276, 1277 [2011], affd 20 NY3d 182 [2012]). In any event, the verdict was not repugnant or factually inconsistent (cf. People v DeLee, 24 NY3d 603, 608-609 [2014]; People v Abraham, 22 NY3d 140, 146 [2013]). The defendant’s remaining contentions are without merit. Dillon, J.P., Dickerson, Duffy and Barros, JJ., concur.