Majority
p. 863The People of the State of New York, Respondent, v Brian Lovall, Appellant. [730 NYS2d 472]
—Judgment unanimously affirmed. Memorandum: The contention of defendant on appeal concerning the alleged error in County Court’s refusal to give a missing witness instruction differs from his
p. 864
contention before County Court, and thus defendant has failed to preserve his present contention for our review (see generally, People v Collins, 277 AD2d 1021 , lv denied 96 NY2d 757 ; People v Miller, 221 AD2d 1001 ; People v Rodrigues, 154 AD2d 912 , lv denied 75 NY2d 775 ). In any event, the court properly refused to give that instruction because defendant failed to demonstrate that the uncalled witness was knowledgeable about a material issue in the case (see, People v Keen, 94 NY2d 533 , 539; People v Lewis, 231 AD2d 919 , lv denied 89 NY2d 1096 ; People v Schiano, 198 AD2d 820 , 821, lv denied 82 NY2d 930 ) or that the witness was under the People’s control (see, People v Keen, supra, at 539 ). (Appeal from Judgment of Monroe County Court, Bristol, J. — Assault, 2nd Degree.) Present— Pigott, Jr., P. J., Hayes, Hurlbutt, Burns and Gorski, JJ.
Cases cited
- People v. Keen 94 NY2d 533 at 539 p. 864
- People v. Lewis 231 AD2d 919 p. 864
- People v. Schiano 198 AD2d 820 at 821 p. 864