Opinion
March 31, 1999
Appeal from Judgment of Cayuga County Court, Corning, J. — Criminal Sale Controlled Substance, 3rd Degree.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal sale of a controlled substance in the third degree (Penal Law § 220.39) and criminal possession of a controlled substance in the third degree (Penal Law § 220.16). County Court did not abuse its discretion in permitting the People to reopen their case after the close of proof to call the confidential informant as a witness. Although defendant knew before the People rested that the People did not intend to call the informant as a witness, defendant did not request production of the informant and waited until the charge conference to request a missing witness instruction (see, People v. Parilla, 158 A.D.2d 556, 557; see also, People v. Gonzalez, 68 N.Y.2d 424, 428; People v. Randall, 177 A.D.2d 661, 661-662, lv denied 79 N.Y.2d 1053).
Defendant's remaining contentions are not preserved for our review (see, CPL 470.05), and we decline to exercise our power to' review them as a matter of discretion in the interest of justice (see, CPL 470.15[a]).
Present — Green, J. P., Pine, Wisner, Scudder and Callahan, JJ.