Opinion
May 18, 1992
Appeal from the Supreme Court, Kings County (Broomer, J., Corriero, J.).
Ordered that the judgment and amended judgments are affirmed.
The record establishes that, with regard to Indictment No. 5104/86, the defendant struck the complainant with a pair of bolt cutters after the complainant confronted him during the course of a burglary of the complainant's apartment. The defendant then ran out of the apartment, got into his car, and drove off. The complainant, joined by his brother and friend, chased the defendant's yellow Lincoln in his car. About 10 to 15 blocks later, during which the complainant never lost sight of the defendant's car, the defendant was finally pulled over. At that point, the complainant apprehended the defendant and held him until the police arrived.
Contrary to the defendant's contention, the court's refusal to charge identification in the present case does not constitute error. The trial testimony established that the defendant was caught "red handed"; thus an identification charge was not necessary (see, People v. Smith, 177 A.D.2d 671; People v Johnson, 177 A.D.2d 652; People v. James, 162 A.D.2d 618).
Moreover, the court correctly refused defense counsel's request for a missing witness charge with respect to the complainant's brother, since there was no showing that the witness could give material testimony (see, People v. Dianda, 70 N.Y.2d 894, 896; People v. Gonzalez, 68 N.Y.2d 424; People v. Morris, 159 A.D.2d 934; cf., People v. Erts, 73 N.Y.2d 872).
Finally, the sentence imposed was neither harsh nor excessive (see, People v. Suitte, 90 A.D.2d 80). Sullivan, J.P., Harwood, Ritter and Copertino, JJ., concur.