Opinion
912
April 22, 2003.
Judgment, Supreme Court, New York County (Herbert Altman, J.), rendered August 17, 2000, convicting defendant, after a jury trial, of robbery in the first degree and criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to concurrent terms of 13 years and 2 to 4 years, unanimously affirmed.
Zachary H. Johnson, for respondent.
Stanley Neustadter, Bobbi C. Sternheim Franklin G. Monsour, Jr., for defendant-appellant.
Before: Tom, J.P., Saxe, Williams, Lerner, Marlow, JJ.
The court properly denied defendant's request for a missing witness charge as to the estranged girlfriend of the victim. The court correctly concluded that this witness was not under the People's control for purposes of a missing witness charge (see People v. Gonzalez, 68 N.Y.2d 424, 428-429; People v. Lake, 301 A.D.2d 432, 752 N.Y.S.2d 879; compare People v. Keen, 94 N.Y.2d 533). In any event, were we to find any error in the denial of the instruction, we would find it to be harmless in light of the overwhelming evidence of defendant's guilt and the fact that defense counsel was permitted to comment in summation on the witness's absence.
The court properly denied defendant's request to introduce the missing witness's grand jury testimony into evidence. Defendant did not have a constitutional right to introduce this hearsay evidence under People v. Robinson ( 89 N.Y.2d 648), because it did not constitute "missing exculpatory testimony from a critical witness" (People v. Cordon, 261 A.D.2d 278, lv denied 93 N.Y.2d 1016).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.