Opinion
May 10, 1994
Appeal from the Supreme Court, New York County (Alvin Schlesinger, J.).
The trial court properly granted the People's request for a missing witness charge on the grounds that the uncalled witness had knowledge of a material issue in the case and would naturally be expected to testify favorably for the defense; that the witness was within the defendant's control, and that the efforts made by defendant to locate the witness did not demonstrate the required due diligence (People v. Gonzalez, 68 N.Y.2d 424). In this connection, defendant's bare allegation that the witness in question "apparently" would assert her Fifth Amendment privilege, in light of the attendant circumstances, did not render that witness unavailable (see, People v. Rodriguez, 38 N.Y.2d 95, 100).
As defendant neither requested a specific jury charge regarding corroboration of accomplice testimony, nor registered any objection or exception to the charge as given, he failed to preserve his current claim of error (CPL 470.05; People v James, 75 N.Y.2d 874, 875). As the record refutes defendant's claim of a serious credibility issue in this case, we decline interest of justice review.
Concur — Sullivan, J.P., Wallach, Ross, Rubin and Tom, JJ.