Opinion
No. 2383.
December 20, 2007.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered October 12, 2006, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of six years, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (William A. Loeb of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Joseph Perry of counsel), for respondent.
Before: Lippman, P.J., Mazzarelli, Saxe, Williams and Buckley, JJ.
The court properly denied defendant's request for a missing witness charge in connection with the People's failure to call three officers involved in a buy and bust operation. There was nothing in the evidence to suggest that any of these officers was in a position to see or hear anything relevant to defendant's agency defense ( see People v McBride, 272 AD2d 200, lv denied 95 NY2d 868; People v Moultrie, 267 AD2d 181, lv denied 94 NY2d 951; People v Shaw, 214 AD2d 472, lv denied 86 NY2d 802).