Opinion
April 28, 1986
Appeal from the County Court, Westchester County (Intermann, J.).
Judgment affirmed.
The instant conviction arose out of the defendant's sale of heroin to an undercover police officer on two separate occasions. An informant whose identity was known to the defendant was employed by the police to arrange the first of these transactions. At trial, the defendant requested a missing witness charge because the People did not call the informant to testify, but his request was denied. The defendant now contends that the denial of his request was erroneous. We disagree.
The record reveals that the police were unaware of the informant's whereabouts at the time of trial despite their efforts to locate him. Moreover, it was established that the informant had not worked with the authorities for more than a year prior to trial. Under such circumstances, the defendant was not entitled to a missing witness charge, as there was no evidence that the informant was under the control of the prosecution (see, People v. Watkins, 67 A.D.2d 717; cf. People v Tayeh, 96 A.D.2d 1045), and his role in the drug transaction was extremely minimal (cf. People v. Santiago, 44 N.Y.2d 924; People v. Gilmore, 106 A.D.2d 399). Additionally, we note that although the defendant knew the identity of the informer, he made no attempt to locate him at any time (see generally, People v Almodovar, 62 N.Y.2d 126; People v. Buckler, 39 N.Y.2d 895; People v. Baldo, 107 A.D.2d 751).
We further reject the defendant's contention that he was denied a fair trial by certain allegedly prejudicial statements made by the prosecutor during summation. The remarks complained of were responsive to similar remarks contained in the defense summation (see, People v. Gilmore, supra; People v. Lowen, 100 A.D.2d 518), and any potential prejudice to the defendant was minimized by a specific curative instruction from the trial court (see, People v. Williams, 46 N.Y.2d 1070; People v. Baldo, supra).
Moreover, we decline to disturb the sentence imposed upon the defendant, as it was within the bounds of both the applicable sentencing statute and the court's sound discretion (see, People v. Farrar, 52 N.Y.2d 302; People v. Suitte, 90 A.D.2d 80). We have considered the defendant's remaining contentions and find them either to be unpreserved for appellate review or without merit. Rubin, J.P., Lawrence, Eiber and Spatt, JJ., concur.