Opinion
May 15, 1989
Appeal from the Supreme Court, Queens County (Di Tucci, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the defendant's conviction of criminal possession of a controlled substance in the first degree from 20 years to life imprisonment to 15 years to life imprisonment; as so modified, the judgment is affirmed.
We find that the trial court properly refused to give a missing witness charge with regard to prosecution's confidential informant, inasmuch as the record indicates that this witness was unavailable to testify (see, People v Gonzalez, 68 N.Y.2d 424; People v Bartolomeo, 126 A.D.2d 375, lv denied 70 N.Y.2d 702; People v Miller, 124 A.D.2d 830, lv denied 69 N.Y.2d 830, cert denied 481 U.S. 1071). In any event, in light of the overwhelming evidence of the defendant's guilt, including her admission to the police that the four ounces of cocaine seized from her apartment belonged to her, any potential error in failing to deliver a missing witness charge must be deemed harmless (see, People v Crimmins, 36 N.Y.2d 230, 242; People v Wearing, 126 A.D.2d 586, lv denied 69 N.Y.2d 888).
We find that the sentence imposed on the conviction of criminal possession of a controlled substance in the first degree is excessive to the extent indicated (see, People v Suitte, 90 A.D.2d 80). Bracken, J.P., Rubin, Sullivan and Balletta, JJ., concur.