Opinion
May 18, 2000.
Judgment, Supreme Court, Bronx County (John Stackhouse, J.) rendered July 1, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
David S. Weisel, for respondent.
Solomon J. Schepps, for defendant-appellant.
Before: Williams, J.P., Tom, Mazzarelli, Buckley, JJ.
Defendant's request for a missing witness charge was properly denied. Defendant failed to meet her initial burden of showing that the uncalled police witness overheard a transmission of the drug transaction or that, even if he heard the transmission, he could have been expected to provide material and noncumulative testimony (see, People v. Dianda, 70 N.Y.2d 894;People v. Shaw, 214 A.D.2d 472 lv denied 86 N.Y.2d 802)
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.