Opinion
No. 5585.
September 27, 2011.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered November 16, 2007, convicting defendant, after a jury trial, of gang assault in the second degree, and sentencing him to a term of 10 years, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Peter Theis of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Before: Andrias, J.P., Sweeny, Moskowitz, Richter and Rom´n, JJ.
The court properly denied defendant's request for a missing witness charge. Defendant did not establish that the uncalled witness could have been expected to provide material and noncumulative testimony ( see e.g. People v Arnold, 48 AD3d 239, 240-241, lv denied 10 NY3d 859). Furthermore, the witness was, at most, a casual acquaintance of the victim; accordingly, the witness was not in the People's control for purposes of such an instruction ( see e.g. People v Nieves, 294 AD2d 152, lv denied 98 NY2d 700).
We perceive no basis for reducing the sentence.