People v. Vasquez

272 A.D.2d 226, 709 N.Y.S.2d 395, 2000 N.Y. App. Div. LEXIS 5918

Opinion

—Judgment, Supreme Court, New York County (Ira Beal, J.), rendered April 8, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 1 to 3 years, unanimously affirmed.

Defendant’s request for a missing witness charge with respect to a “ghost” officer was properly denied. Defendant failed to make a prima facie showing that this officer was in a position to observe defendant at any time (see, People v Kitching, 78 NY2d 532, 537; People v Moultrie, 267 AD2d 181). On the contrary, the evidence established that a testifying “ghost” officer was too far away to observe the portion of the drug transaction that involved defendant, and that the nontestifying officer was even farther away. The challenged portion of the prosecutor’s summation was responsive to defendant’s summation argument regarding the People’s failure to call the witness (see, People v Overlee, 236 AD2d 133, lv denied 91 NY2d 976) and did not suggest that the uncalled witness’s testimony would have been incriminating. Concur — Tom, J. P., Ellerin, Lerner, Andrias and Saxe, JJ.