Opinion
January 18, 1994
Appeal from the Supreme Court, Queens County (Eng, J.).
Ordered that the judgment and amended judgment are affirmed.
The trial court did not err in denying the defendant's request for a missing witness charge with respect to the undercover officer's "ghost", who was assigned to observe the activities of the undercover officer. The record indicates that the sale took place inside a building and there is no evidence that the uncalled officer ever viewed the defendant or observed any part of the drug transaction. Consequently, the defendant failed to sustain his initial burden of making a prima facie showing of entitlement to a missing witness charge (see, People v Kitching, 78 N.Y.2d 532; People v. Everette, 167 A.D.2d 350).
The defendant's claims of prosecutorial misconduct are either unpreserved for appellate review (see, CPL 470.05) or without merit.
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
In view of our determination, there is no basis for vacatur of the adjudication that the defendant violated the terms of his probation under Superior Court Information No. N10300/88 (cf., People v. Clark, 45 N.Y.2d 432). Copertino, J.P., Pizzuto, Santucci and Joy, JJ., concur.