Opinion
July 1, 1996
Appeal from the Supreme Court, Kings County (DeLury, J., Slavin, J.).
Ordered that the judgment and the amended judgment are affirmed.
Contrary to defendant's contention, he was not entitled to a missing witness charge in connection with his conviction under Indictment No. 12246/89 because the People failed to call a witness who saw the incident. That witness, through his lawyer, refused to testify, rebutting the defendant's prima facie showing of entitlement to the charge ( see, People v. Macana, 84 N.Y.2d 173).
The defendant's sentence is not excessive ( see, People v Suitte, 90 A.D.2d 80). O'Brien, J.P., Sullivan, Florio and McGinity, JJ., concur.