People v. Tavarez

288 A.D.2d 120, 733 N.Y.S.2d 342, 2001 N.Y. App. Div. LEXIS 11122

Opinion

—Judgment, Supreme Court, Bronx County (John Moore, J.), rendered August 17, 1998, convicting defendant, after a jury trial of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4V2 to 9 years, unanimously affirmed.

Defendant’s request for a missing witness charge regarding a “ghost” officer was properly denied since there was no evidence that he was in a position to make any relevant observations (see, People v Vasquez, 272 AD2d 226, lv denied 95 NY2d 872). There was no testimony concerning the ghost’s location at any time during the events in question (compare, People v Kitching, 78 NY2d 532), and testimony that his general function was to observe the undercover purchaser did not establish his actual position. Moreover, the prosecutor represented that he had spoken with the ghost and learned that he had seen nothing.

Defendant’s objection to the court’s Allen charge (Allen v United States, 164 US 492) is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the charge was neutral, balanced and non-coercive (see, People v Alvarez, 86 NY2d 761; People v Ford, 78 NY2d 878). Concur — Nardelli, J. P., Williams, Mazzarelli, Lemer and Friedman, JJ.