Opinion
May 4, 1992
Appeal from the Supreme Court, Kings County (Tomei, J.).
Ordered that the judgment is affirmed.
There is no merit to the defendant's contention that the court committed reversible error by denying his timely request for a missing witness charge. Although the defendant established that the missing witness, the girlfriend of the complainant, was in the complainant's company when he was allegedly robbed and shot by the defendant and his two accomplices, and thus that she could be expected to have knowledge about a material issue (People v. Kitching, 78 N.Y.2d 532), the People established that the missing witness would be not able to identify the defendant. Thus, this witness's testimony would not have been favorable to the People. Moreover, the People disclosed this information prior to opening statements. Following this disclosure, the prosecutor offered to make this witness available to the defense. The defense counsel declined to avail herself of this opportunity to present the testimony of this witness who clearly was not under the People's control (see, People v. Rose, 126 A.D.2d 581). Under these circumstances this missing witness was equally available to the defendant (see, People v. Rose, supra). Therefore, a missing witness charge was properly denied. Bracken, J.P., Rosenblatt, Miller and O'Brien, JJ., concur.