Opinion
2000-11420
Argued September 9, 2002
October 1, 2002
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered December 5, 2000, convicting him of criminal sale of a controlled substance in the third degree, criminal sale of a controlled substance in or near school grounds, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Tina Loschiavo of counsel), for respondent.
Before: DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, DANIEL F. LUCIANO, JJ.
ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The party seeking a missing witness charge must sustain an initial burden of showing that the opposing party failed to call a witness who could be expected to have knowledge regarding a material issue in the case and to provide testimony favorable to the opposing party (see People v. Macana, 84 N.Y.2d 173, 177; People v. Gonzalez, 68 N.Y.2d 424; People v. Kitching, 78 N.Y.2d 532, 536). Here, the defendant failed to sustain his burden since he did not demonstrate that the uncalled witness was knowledgeable about the drug transaction, and that the witness would naturally be expected to provide testimony favorable to the prosecution (see People v. Kitching, supra).
As the People correctly concede, "[t]he defendant's conviction of criminal possession of a controlled substance in the seventh degree must be vacated since that count is a lesser-included offense of the crime of criminal possession of a controlled substance in the third degree" (People v. Biggs, 280 A.D.2d 484; see also People v. Sutton, 289 A.D.2d 424).
The defendant contends that the criminal sale of a controlled substance in the third degree count should be dismissed as a noninclusory concurrent count of criminal sale of a controlled substance in or near school grounds. His contention is not preserved for appellate review, as he failed to move to dismiss the criminal sale of a controlled substance in the third degree count at trial (see People v. Rodriguez, 126 A.D.2d 681, 682). In any event, it is without merit (see People v. Reed, 222 A.D.2d 459; People v. Peterson, 68 A.D.2d 938).
RITTER, J.P., KRAUSMAN, McGINITY and LUCIANO, JJ., concur.