People v. Soto

297 A.D.2d 567, 747 N.Y.2d 160, 747 N.Y.S.2d 160, 2002 N.Y. App. Div. LEXIS 8759

Opinion

The People’s request for a missing witness charge as to a person who, according to defendant’s trial testimony, asked defendant to buy drugs for her on the date in question, was properly granted. Given defendant’s testimony that the person was his friend and next-door neighbor, for whom defendant was willing to secure drugs with his own money, it is reasonable to presume that she would testify favorably for defendant. Accordingly, the element of “control” was sufficiently established (see People v Keen, 94 NY2d 533, 539; People v Trent, 273 AD2d 50, Iv denied 95 NY2d 893). Furthermore, it is clear that the uncalled witness could have provided material, noncumulative testimony, and defendant’s claim that the witness might not be available rested entirely on speculation.

Defendant’s remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur — Williams, P.J., Tom, Rosenberger and Friedman, JJ.