Opinion
November 20, 2001.
Judgment, Supreme Court, Bronx County (John Moore, J.), rendered August 17, 2001, convicting defendant, after a jury trial of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
Cynthia J. Pree, for respondent.
Karin Ciano, for defendant-appellant.
Before: Nardelli, J.P., Williams, Mazzarelli, Lerner, Friedman, JJ.
Defendant's request for a missing witness charge regarding a "ghost" officer was properly denied since there was no evidence that he was in a position to make any relevant observations (see, People v. Vasquez, 272 A.D.2d 226, lv denied 95 N.Y.2d 872). There was no testimony concerning the ghost's location at any time during the events in question (compare, People v. Kitching, 78 N.Y.2d 532), and testimony that his general function was to observe the undercover purchaser did not establish his actual position. Moreover, the prosecutor represented that he had spoken with the ghost and learned that he had seen nothing.
Defendant's objection to the court's Allen charge (Allen v. United States, 164 U.S. 492) is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that it was neutral, balanced and non-coercive (see, People v. Aarez, 86 N.Y.2d 761; People v. Ford, 78 N.Y.2d 878).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.