People v. McFarlane

189 A.D.2d 785

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 1993
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered November 3, 1986, convicting him of criminal possession of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the seventh degree, criminal possession of marihuana in the fifth degree, and unlawful possession of marihuana, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, his conviction need not be set aside due to the court’s failure to provide a missing witness charge as to uncalled police officers who were present at the scene of his arrest. Although the defendant did make a prima facie showing that at least two officers were available to the People and would have had knowledge about a material issue upon which evidence was already in the case (see, People v Kitching, 78 NY2d 532; People v Gonzalez, 68 NY2d 424), the court’s failure to so charge was harmless. In light of the overwhelming evidence of the defendant’s guilt, there was no significant probability that a contrary verdict would have resulted (see, People v Fields, 76 NY2d 761; People v Skeeters, 180 AD2d 834; People v Astacio, 173 AD2d 834). Sullivan, J. P., Balletta, Eiber and Santucci, JJ., concur.