Opinion
September 21, 1992
Appeal from the Supreme Court, Queens County (Clabby, J.).
Ordered that the judgment and the amended judgment are affirmed.
Contrary to the defendant's contentions, the trial court did not commit reversible error by denying his request for a missing witness charge. To establish his entitlement to such a charge, it was incumbent on the defendant to demonstrate that there was an uncalled witness who could be expected to have knowledge about a material issue and to testify favorably to the prosecution (see, People v Kitching, 78 N.Y.2d 532). In the instant case the defendant failed to meet this burden. Although the People did not call as a witness the partner of the arresting officer, the defendant failed to establish that this uncalled witness had knowledge about the identification issue central to this prosecution. The arresting officer testified that he observed the defendant's flight from the stolen vehicle and that his partner pursued another occupant of the vehicle who fled in the opposite direction. The arresting officer apprehended the defendant without ever losing sight of him. There was no evidence to support the defense theory that the arresting officer had lost sight of the driver of the stolen vehicle during the foot pursuit and had mistakenly arrested the defendant. Moreover, the defendant failed to demonstrate that the uncalled witness, who pursued another suspect in a different direction, would have been able to shed any light on this claim of misidentification, as the arrest of the defendant occurred one block away from the place where the occupants abandoned the stolen vehicle. Accordingly, as the defendant did not demonstrate that the uncalled witness would have been in a position to have knowledge of the circumstances surrounding the defendant's arrest, it was not error for the court to deny his request for a missing witness charge (see, People v Dianda, 70 N.Y.2d 894; People v Lyons, 178 A.D.2d 492, lv granted 79 N.Y.2d 921; People v Torres, 146 A.D.2d 658).
The defendant's claim that the prosecutor's summation deprived him of a fair trial is without merit, as the remarks challenged on appeal were appropriate responses to comments made during the defendant's summation (see, People v Gordon, 172 A.D.2d 771; People v Morgan, 136 A.D.2d 749). Mangano, P.J., Miller, O'Brien and Santucci, JJ., concur.