Opinion
June 22, 1990
Appeal from the Onondaga County Court, Cunningham, J.
Present — Dillon, P.J., Green, Lawton, Davis and Lowery, JJ.
Judgment unanimously affirmed. Memorandum: There is no merit to defendant's contention that the trial court erred by refusing to give a missing witness charge with respect to the People's failure to call Luis Davila as a witness. Defendant failed to establish that Davila was knowledgeable about a material issue in the case and that he would be expected to testify favorably to the People (see, People v. Gonzalez, 68 N.Y.2d 424, 427-428).
Defendant's conviction is supported by legally sufficient evidence (see, People v. McManus, 67 N.Y.2d 541, 545; People v Gomez, 65 N.Y.2d 9, 10-11). Defendant's challenge to the court's refusal to charge criminally negligent homicide (see, Penal Law § 125.10) as a lesser included offense of murder in the second degree (see, Penal Law § 125.25) is foreclosed by reason of the jury's verdict of guilty of murder in the second degree, the crime alleged in the indictment, and its implicit rejection of the charged lesser included offenses of first and second degree manslaughter (see, People v. Boettcher, 69 N.Y.2d 174, 180; People v. Kern, 149 A.D.2d 187, 238, affd 75 N.Y.2d 638); People v. Feris, 144 A.D.2d 691).
We have reviewed defendant's remaining contentions, including those raised in his supplemental pro se brief, and we find them to be either unpreserved for our review or, where preserved, lacking in merit.