People v. Whetstone

130 A.D.2d 969, 516 N.Y.S.2d 151, 1987 N.Y. App. Div. LEXIS 46955

Opinion

Judgment unanimously affirmed. Memorandum: The trial court properly declined to give a missing witness charge. The whereabouts of the witness was unknown. The prosecutor and the police tried, without success, to locate the witness and serve him with a material witness warrant.. Hence, the witness was not available to, or under the control of, the People (see, People v McCullers, 119 AD2d 835, 836, Iv denied 68 NY2d 758; People v Geoghegan, 68 AD2d 279, 286, affd 51 NY2d 45; People v Williams, 34 AD2d 1046). We have considered defendant’s remaining claims and find them lacking in merit. (Appeal from judgment of Supreme Court, Erie County, McGowan, J.—burglary, third degree.) Present—Callahan, J. P., Doerr, Green, Balio and Law-ton, JJ.