Opinion
January 11, 2001.
Judgment, Supreme Court, Bronx County (Denis Boyle, J.), rendered December 11, 1997, convicting defendant, after a jury trial, of robbery in the first degree and burglary in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 13 years and 8 years, respectively, unanimously affirmed.
Before: Sullivan, P.J., Nardelli, Williams, Mazzarelli, Saxe, JJ.
Nisha M. Desai, for respondent.
Daniel K. Hsiung, for defendant-appellant.
The court properly declined to give the jury a missing witness instruction with respect to an employee at the pizzeria where the robbery occurred. The evidence at trial established that the employee was not present during the robbery and only became involved in the incident when he briefly participated in a chase of defendant. Defendant failed to show that the employee could provide material, non-cumulative evidence (see,People v. Gonzalez, 68 N.Y.2d 424).