Opinion
October 29, 1990
Appeal from the Supreme Court, Kings County (Douglass, J.).
Ordered that the judgment is affirmed.
The defendant's contention that the trial court erred in refusing to provide a missing witness charge to the jury is without merit. The evidence adduced at trial established that the missing witness had returned to his native country and was therefore "unavailable" inasmuch as he could not be compelled by the People to testify at trial (see, People v. Gonzalez, 68 N.Y.2d 424, 428 [a missing witness charge is appropriate if, inter alia, it can be demonstrated that a party has the physical ability to locate and produce a witness]). Moreover, there is nothing in the record to indicate that the testimony of the missing witness would have been anything more than cumulative. Accordingly, the trial court's refusal to give such a charge was proper.
Additionally, the defendant's contention that the verdict sheet submitted to the jury was improper is not preserved for appellate review since he failed to object to its submission (see, People v. Taylor, 76 N.Y.2d 873; People v. Thwaites, 162 A.D.2d 743; People v. Mathis, 150 A.D.2d 613; People v. Decambre, 143 A.D.2d 927), and we decline to review it in the exercise of our interest of justice jurisdiction in view of the overwhelming evidence of the defendant's guilt (see, People v. Thwaites, supra; People v Mathis, supra; People v. Lugo, 150 A.D.2d 502).
We find that the defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80).
We have examined the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Mangano, P.J., Thompson, Sullivan and Rosenblatt, JJ., concur.