Opinion
November 16, 1994
Appeal from the Erie County Court, LaMendola, J.
Present — Pine, J.P., Lawton, Fallon, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's conviction of robbery in the third degree is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). We reject the contention of defendant that the testimony of a prosecution witness is incredible as a matter of law (see, People v. Taylor, 206 A.D.2d 904; People v. Colon, 198 A.D.2d 835, 836, lv denied 83 N.Y.2d 803; People v. Briggs, 190 A.D.2d 995, lv denied 81 N.Y.2d 1011).
The trial court properly denied defendant's request for a missing witness charge based on the People's failure to call as a witness the manager of the shoe store where the robbery took place (see, People v. Lyons, 81 N.Y.2d 753, 754; People v Gonzalez, 68 N.Y.2d 424, 427-428). The mere failure to produce a witness at trial, without more, is insufficient to justify giving the charge (see, People v. Gonzalez, supra, at 427; People v Robinson, 174 A.D.2d 998, 1000, lv denied 78 N.Y.2d 1014). In response to defendant's request for a missing witness charge, the People amply demonstrated that the witness was neither available nor under the control of the prosecution (see, People v. Baker, 174 A.D.2d 1019, 1020, lv denied 78 N.Y.2d 1073; see also, People v. Gonzalez, supra). Additionally, had there been error in the failure to give a missing witness charge, it would have been harmless in light of the overwhelming evidence of defendant's guilt (see, People v. Crimmins, 36 N.Y.2d 230, 242).
Finally, we conclude that the sentence is neither unduly harsh nor severe.