Opinion
January 17, 1989
Appeal from the Supreme Court, Kings County (Pesce, J.).
Ordered that the judgment is affirmed.
The defendant was arrested during a so-called "buy and bust" operation shortly after he sold cocaine to an undercover police officer. He argues that it was error for the court to have denied his application for a missing witness charge with respect to the People's failure to call a second undercover officer, who had driven to the area with the first and who, he argues, may have witnessed the transaction. We conclude that the trial court properly denied the defendant's application.
The defendant provided no evidence that the second undercover officer had observed the transaction despite the fact that such information could have been elicited during the cross-examination of the first undercover officer, which followed the charge conference. Accordingly, the defendant failed to prove that the missing witness was knowledgeable about a material issue in the case (see, People v Gonzalez, 68 N.Y.2d 424, 427). Moreover, even assuming that the second undercover officer had witnessed the transaction, there is no indication that his testimony would have been noncumulative (see, People v Gonzalez, supra, at 427; People v Bradley, 112 A.D.2d 441).
We have considered the defendant's remaining contentions and find them to be without merit. Brown, J.P., Lawrence, Kooper and Spatt, JJ., concur.