People v. McBride

272 A.D.2d 200, 708 N.Y.S.2d 18, 2000 N.Y. App. Div. LEXIS 5661

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 2000
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (John Stackhouse, J.), rendered July 1, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to a term of 4V2 to 9 years, unanimously affirmed.

Defendant’s request for a missing witness charge was properly denied. Defendant failed to meet her initial burden of showing that the uncalled police witness overheard a transmission of the drug transaction or that, even if he heard the transmission, he could have been expected to provide material and noncumulative testimony (see, People v Dianda, 70 NY2d 894; People v Shaw, 214 AD2d 472, lv denied 86 NY2d 802). Concur — Williams, J. P., Tom, Mazzarelli and Buckley, JJ.