Opinion
June 27, 1988
Appeal from the Supreme Court, Kings County (Greenberg, J.).
Ordered that the judgment is affirmed.
The defendant failed to register an objection to the trial court's Allen charge and accordingly, his challenge to the propriety of that charge has not been preserved for appellate review (see, CPL 470.05; People v Thomas, 50 N.Y.2d 467). In any event, the defendant's challenge is without merit. Contrary to the defendant's position, the Allen charge was "essentially neutral" and did not coerce the jurors into reaching a verdict (People v Page, 47 N.Y.2d 968, 970, cert denied 444 U.S. 936; People v Pinder, 106 A.D.2d 415).
Moreover, we find that the trial court acted properly in giving a missing witness charge in regard to the defendant's failure to call his relatives as witnesses to substantiate his alibi defense. The prosecution clearly demonstrated that the uncalled witnesses were available, were under the defendant's control and would provide relevant and noncumulative testimony (see, People v Gonzalez, 68 N.Y.2d 424; People v Rodriguez, 38 N.Y.2d 95; People v Morales, 126 A.D.2d 575). Additionally, the defendant's challenge to the content of the missing witness charge has not been preserved for appellate review since the defendant took no exception to the charge (CPL 470.05; People v Thomas, supra). In any event, to the extent that the charge failed to adequately explain the inference which the jurors could draw from the defendant's failure to call these witnesses (see, People v Paylor, 70 N.Y.2d 146), any error was harmless in view of the fact that the defendant was acquitted of all charges arising from the burglary in regard to which he interposed the alibi defense.
We have reviewed the defendant's remaining contentions and find them to be unpreserved for appellate review and, in any event, without merit. Mollen, P.J., Lawrence, Weinstein and Balletta, JJ., concur.