Opinion
January 12, 1987
Appeal from the County Court, Suffolk County (Weissman, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in a light most favorable to the People and giving the prosecution the benefit of every inference to be drawn therefrom, as we must, the defendant's guilt was proven beyond a reasonable doubt (see, People v. Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932).
The trial court did not err in giving a missing witness charge with respect to the defendant's girlfriend. "Ordinarily, a court may not comment upon a defendant's failure to testify or otherwise to come forward with evidence, but, once a defendant does so, his failure to call an available witness who is under defendant's control and has information material to the case may be brought to the jurors' attention for their consideration" (People v. Rodriguez, 38 N.Y.2d 95, 98; see also, People v Wilson, 64 N.Y.2d 634; People v. De Jesus, 42 N.Y.2d 519, 525). The defendant at bar took the stand and testified that he had been at his girlfriend's house on the night of the crime charged. The defendant further testified that he was walking directly home when he was stopped by a police officer and taken to the scene of the instant burglary. Contrary to the defendant's contention, this testimony tended to establish an alibi defense. Hence, any testimony the defendant's girlfriend might have provided was material and necessary to the case and the defendant's failure to call this witness could be brought to the jury's attention (see, People v. Wilson, supra; People v. Stallings, 112 A.D.2d 702; cf. People v. Williams, 112 A.D.2d 176). The court also properly instructed the jury to determine first whether the defendant's girlfriend was available to testify for the defendant before considering the defendant's failure to call her, and that the adverse inference the jury could draw therefrom was permissive.
We further note that even if the missing witness charge had been erroneous, the overwhelming evidence of the defendant's guilt would have rendered any error harmless in this regard (see, People v. Crimmins, 36 N.Y.2d 230). Thompson, J.P., Brown, Eiber and Kunzeman, JJ., concur.