Opinion
Submitted November 23, 1999
January 18, 2000
Appeal by the defendant from a judgment of the Supreme Court, Kings County (F. Rivera, J.), rendered September 23, 1998, convicting him of attempted grand larceny in the third degree and possession of burglar's tools, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Katherine R. Schaefer of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Anthea H. Bruffee, and Paul, Weiss, Rifkind, Wharton Garrison [Barbara A. Gross] of counsel), for respondent.
CORNELIUS J. O'BRIEN, J.P., SONDRA MILLER, LEO F. McGINITY, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The trial court properly denied the defendant's request for a missing witness charge based on the People's failure to call one of the police officers who had been at the scene of the crime. The defendant failed to make a prima facie showing that the witness could be expected to have knowledge about a material issue in the case or that his testimony would be favorable to the People (see,People v. Macana, 84 N.Y.2d 173 ; People v. Smith, 254 A.D.2d 312 ).
O'BRIEN, J.P., S. MILLER, McGINITY, and SMITH, JJ., concur.