People v. Towles

207 A.D.2d 848, 616 N.Y.S.2d 549

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 19, 1994
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leahy, J.), rendered April 30, 1991, convicting him of crimi: nal sale of a controlled substance in the third degree, criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contentions, the trial court properly denied the defendant’s application for a "missing witness” charge with respect to a "friend” who was present when the deceased had initially approached the defendant, immediately prior to the alleged drug sale and shooting in question. The record indicates that the defendant failed to make a prima facie showing that the uncalled witness was in a position to have knowledge about or to have observed the drug sale or shooting disputed by the defendant (see, People v Kitching, 78 NY2d 532; People v Gonzalez, 68 NY2d 424; see also, People v Brown, 186 AD2d 211; People v Lyons, 178 AD2d 492, 493, affd 81 NY2d 753).

The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate ieview or without merit. Mangano, P. J., Bracken, Santucci and Friedmann, JJ., concur.