People v. Velez

Judgment, Supreme Court, Bronx County (Robert E. Torres, J.), rendered November 21, 2008, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to a term of five years, unanimously affirmed.

The court properly denied defendant’s request for a missing witness charge, since there was no evidence that the uncalled officer could have provided material, noncumulative testimony. The trial evidence failed to establish that this officer was in a position to see the transaction (see People v Dianda, 70 NY2d 894 [1987]; People v Brunner, 67 AD3d 464 , 465 [2009], affd 16 NY3d 820 [2011]; compare People v Kitching, 78 NY2d 532 , 538 [1991]). The court accorded defendant sufficient scope in which to comment in summation on this officer’s absence, and it properly exercised its discretion in limiting defense arguments on this-issue. In any event, we find that any error in the court’s denial of a missing witness charge or in its limitations on defendant’s summation was harmless (see People v Thomas, 21 NY3d 226 , 231 [2013]). Concur — Tom, J.R, Friedman, Acosta, Moskowitz and Gische, JJ.