People v. Williams

47 A.D.3d 854, 849 N.Y.S.2d 633

Opinion

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered November 22, 2005, convicting him of criminal sale of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The County Court properly denied the defendant’s request for a missing witness charge. A missing witness charge is appropriate where it is shown that “the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party” (People v Gonzalez, 68 NY2d 424, 427 [1986]). The People demonstrated that they exerted diligent efforts to locate the uncalled witness without success (see People v Aguirre, 201 AD2d 485, 486 [1994]).

Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006] ).

The defendant’s remaining contentions are unpreserved for appellate review and, in any event, are without merit. Ritter, J.P., Florio, Miller and Dillon, JJ., concur.