Opinion
March 8, 1993
Appeal from the Supreme Court, Kings County (Goldstein, J.).
Ordered that the judgment is affirmed.
The defendant's contention that the gun recovered from him should have been suppressed is without merit. The police officer was justified in removing the defendant's hand from his pocket and thereby recovering the gun because the officer reasonably feared for his own safety and the safety of others (see, People v. Benjamin, 51 N.Y.2d 267). The defendant's contention that he was entitled to a missing witness charge because the People failed to call the defendant's opponent in the street fight which the officer was investigating when he recovered the gun, is also without merit, because the witness was not under the People's control and was equally available to the defendant (see, People v. Lammers, 184 A.D.2d 733).
We find that the defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80). Thompson, J.P., Sullivan, O'Brien and Copertino, JJ., concur.