People v. White

186 A.D.2d 503, 589 N.Y.S.2d 333, 1992 N.Y. App. Div. LEXIS 12340

Opinion

— Judgment, Supreme Court, New York County (Herbert Altman, J.), rendered May 11, 1990, 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 4!A to 9 years, unanimously affirmed.

The undercover officer’s testimony that there was a second undercover officer stationed at an observation post three blocks away did not entitle defendant to a missing witness charge. Since the testimony in question did not establish that the other officer was able to observe defendant commit the acts that were observed by the testifying officer from his rooftop position, defendant failed to meet his burden of showing that the uncalled witness, the second undercover officer, could be expected to have knowledge about a material issue and to testify favorably to the People (People v Kitching, 78 NY2d 532). Concur — Carro, J. P., Kupferman, Ross and Asch, JJ.