Opinion
May 29, 1990
Appeal from the Supreme Court, Kings County (Lombardo, J.).
Ordered that the judgment is affirmed.
We find that the trial court meaningfully responded to the jury's request for a readback of the testimony of one of the People's witnesses (see, People v. Almodovar, 62 N.Y.2d 126, 131; People v. Malloy, 55 N.Y.2d 296, 301). It was well within the court's discretion to have asked the jury what portion of the testimony it wanted read back and for the jury to indicate when it had heard enough. Thus the court indicated to the jury a continued willingness to abide by their wishes (see, People v Elie, 150 A.D.2d 719; People v. Carrero, 140 A.D.2d 533, 534).
Further, the court properly denied a missing witness charge with respect to Barry Dowdy since it was not shown that the witness was under the control of the prosecutor and it was established that the witness would in fact testify more favorably to the defendant than he would to the prosecution (see, People v Gonzalez, 68 N.Y.2d 424, 427-428). Further, the witness was in court and was available to the defense.
The defendant's sentence was fully justified in view of the callous, senseless and brutal nature of the crime.
The defendant's remaining contention is unpreserved for appellate review (see, CPL 470.05; People v. Santiago, 52 N.Y.2d 865, 866; People v. Carter, 137 A.D.2d 826, 828) and we decline to review it in the exercise of our interest of justice jurisdiction. Mangano, P.J., Brown, Sullivan and Balletta, JJ., concur.