Opinion
December 20, 1990
Appeal from the Supreme Court, Bronx County (Bernard Jackson, J.).
Defendant's application at trial for a material witness order was deficient in both form (CPL 620.30) and substance (CPL 620.20 [a], [b]). Appellant failed to demonstrate that Martinez possessed material testimony or was not amenable to subpoena.
With respect to defendant's request for a missing witness charge as to Martinez and another witness, there is no indication that either witness was under the People's control. While the court would have been better advised not to refer to the defendant's "election" not to testify in its no adverse inference charge, considering the instruction as a whole, we find no basis for reversal (see, People v. Diggs, 151 A.D.2d 359, 362). Defendant's remaining arguments are either unpreserved or without merit.
Concur — Murphy, P.J., Sullivan, Carro, Ellerin and Smith, JJ.