Opinion
November 16, 1987
Appeal from the Supreme Court, Kings County (Vinik, J.).
Ordered that the judgment is affirmed.
The defendant's contention that the trial court erred in denying his request for a missing witness charge is without merit. The record reveals that although the defendant met his burden of showing the existence of missing witnesses and their knowledge of material facts, he failed to meet his burden of showing the witnesses' testimony would be material and noncumulative and that they would ordinarily be expected to testify favorably for the People (see, People v. Gonzalez, 68 N.Y.2d 424). Furthermore, there is evidence in the record that both witnesses were unavailable and not in the control of the prosecution (People v. Gonzalez, supra; People v. Rodriguez, 38 N.Y.2d 95; Hayden v. New York Rys. Co., 233 N.Y. 34).
We also find that the defendant was not deprived of the effective assistance of counsel. Counsel's decision not to cross-examine the codefendant regarding another plausible reason for the defendant's presence at the scene of the robbery was merely a trial strategy which was not outside the range of professionally competent assistance (see, People v. Baldi, 54 N.Y.2d 137; People v. Lorenzo, 123 A.D.2d 886, lv denied 69 N.Y.2d 952). Moreover, counsel's decision not to object to the trial court's interested witness charge was not error since the trial court was correct in not charging that the complaining witnesses were interested (see, People v. Ingrassia, 118 A.D.2d 587; People v. Brabham, 77 A.D.2d 626).
We have considered the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Niehoff, J.P., Weinstein, Eiber and Harwood, JJ., concur.