Opinion
May 22, 1987
Appeal from the Supreme Court, Erie County, McGowan, J.
Present — Callahan, J.P., Doerr, Green, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: The trial court properly declined to give a missing witness charge. The whereabouts of the witness was unknown. The prosecutor and the police tried, without success, to locate the witness and serve him with a material witness warrant. Hence, the witness was not available to, or under the control of, the People (see, People v McCullers, 119 A.D.2d 835, 836, lv denied 68 N.Y.2d 758; People v Geoghegan, 68 A.D.2d 279, 286, affd 51 N.Y.2d 45; People v Williams, 34 A.D.2d 1046). We have considered defendant's remaining claims and find them lacking in merit.