Opinion
No. 2006-03373.
January 22, 2008.
Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered November 22, 2005, convicting him of criminal sale of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.
Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Richard Longworth Hecht, and Anthony J. Servino of counsel), for respondent.
Before: Ritter, J.P., Florio, Miller and Dillon, JJ.
Ordered that the judgment is affirmed.
The County Court properly denied the defendant's request for a missing witness charge. A missing witness charge is appropriate where it is shown that "the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party" ( People v Gonzalez, 68 NY2d 424, 427). The People demonstrated that they exerted diligent efforts to locate the uncalled witness without success ( see People v Aguirre, 201 AD2d 485, 486).
Upon the exercise of our factual review power ( see CPL 470.15), we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v Romero, 7 NY3d 633).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.