Opinion
1363
June 13, 2002.
Judgment, Supreme Court, New York County (William Leibovitz, J.), rendered January 13, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the second and third degrees, and sentencing him to concurrent terms of 3 years to life and 1 to 3 years, respectively, unanimously affirmed.
MEREDITH BOYLAN, for respondent.
ROSALI VAZQUEZ, for defendant-appellant.
Before: Before: Before: Before: Before: Williams, P.J., Tom, Saxe, Friedman, Marlow, JJ.
The court properly denied defendant's request for a missing witness charge concerning an officer who concededly did not observe the drug transactions in question or defendant's arrest. Since, at best, this officer's testimony would have been limited to his account of radio communications made by the undercover officer and other peripheral matters, defendant did not establish that he was knowledgeable about any material matter involved in the case (compare, People v. Lyons, 81 N.Y.2d 753, with People v. Kitching, 78 N.Y.2d 532).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.