Opinion
1618-1619
September 24, 2002.
Judgments, Supreme Court, New York County (Herbert Altman, J.), rendered April 12, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, and also convicting him, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a concurrent term of 4½ to 9 years, unanimously affirmed.
MATTHEW J. GALLUZZO, for respondent.
KRISTINA ROSS, for defendant-appellant.
Before: Williams, P.J., Tom, Rosenberger, Friedman, JJ.
The People's request for a missing witness charge as to a person who, according to defendant's trial testimony, asked defendant to buy drugs for her on the date in question, was properly granted. Given defendant's testimony that the person was his friend and next-door neighbor, for whom defendant was willing to secure drugs with his own money, it is reasonable to presume that she would testify favorably for defendant. Accordingly, the element of "control" was sufficiently established (see People v. Keen, 94 N.Y.2d 533, 539; People v. Trent, 273 A.D.2d 50, lv denied 95 N.Y.2d 893). Furthermore, it is clear that the uncalled witness could have provided material, non-cumulative testimony, and defendant's claim that the witness might not be available rested entirely on speculation.
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.