Opinion
October 23, 1990
Appeal from the Supreme Court, New York County (Edward McLaughlin, J.).
Defendant's guilt was established beyond a reasonable doubt by credible evidence that the undercover officer had two encounters with defendant, culminating in the sale of crack, after which the officer confirmed that the correct person was taken into custody. We also find that the trial court did not err in refusing to give a missing witness charge, inasmuch as defendant made no showing that the undercover officer's partner or the sergeant supervising the operation could be expected to provide noncumulative, material evidence. (People v. Daniels, 156 A.D.2d 297, lv denied 75 N.Y.2d 918.)
Defendant was not prejudiced when the court questioned the arresting officer. Defendant argues that the court unfairly injected itself into the proceedings when it posed a single question to the arresting officer. Since defense counsel did not object, the claim is unpreserved. In any event, we do not believe the question prejudiced the defendant.
Concur — Sullivan, J.P., Ross, Rosenberger, Kassal and Wallach, JJ.