Opinion
February 3, 1995
Appeal from the Genesee County Court, Morton, J.
Present — Pine, J.P., Fallon, Wesley, Callahan and Davis, JJ.
Judgment unanimously affirmed. Memorandum: There is no merit to the contention of defendant that the trial court erred in giving a missing witness charge; the record shows that the court denied the People's request for such a charge and instructed the jury in accordance with a charge agreed upon by both attorneys.
There is also no merit to the contention that defendant was prejudiced by the People's failure to call Cheryl Riley as a witness. The record fails to disclose any evidence that such a person was available or even existed. In any event, the prosecution had no duty to call her as a witness (see, People v Vaughn, 35 A.D.2d 889). The court's charge to the jury on reasonable doubt was proper in all respects. Finally, we conclude that the verdict is supported by legally sufficient evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495).