Opinion
September 18, 1997
Appeal from Supreme Court, Bronx County (Gerald Sheindlin, J.).
Defendant's request for a missing witness charge was properly denied. Defendant failed to make a prima facie demonstration that the witness was available for trial, particularly in light of the trial testimony concerning his disappearance, or that his testimony would not be merely cumulative of the testimony of the other three witnesses who were present in the apartment at the time of the robberies ( see, People v. Kitching, 78 N.Y.2d 532, 536; People v. Gonzalez, 68 N.Y.2d 424, 427). We also note the overwhelming evidence of guilt.
We find the sentence excessive to the extent indicated.
Concur — Rosenberger, J.P., Wallach, Rubin, Tom and Colabella, JJ.