Opinion
(948) KA 99-05471.
September 28, 2001.
Appeal from Judgment of Monroe County Court, Bristol, J. — Assault, 2nd Degree.)
PRESENT: PIGOTT, JR., P.J., HAYES, HURLBUTT, BURNS AND GORSKI, JJ.
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 contention before County Court, and thus defendant has failed to preserve his present contention for our review ( see generally, People v. Collins, 277 A.D.2d 1021, lv denied 96 N.Y.2d 757; People v. Miller, 221 A.D.2d 1001; People v. Rodrigues, 154 A.D.2d 912, lv denied 75 N.Y.2d 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 N.Y.2d 533, 539; People v. Lewis, 231 A.D.2d 919, lv denied 89 N.Y.2d 1096; People v. Schiano, 198 A.D.2d 820, 821, lv denied 82 N.Y.2d 930) or that the witness was under the People's control ( see, People v. Keen, supra, at 539).