PEOPLE v. WHITE (1999)

County Court properly denied defendant's request for a missing witness charge with respect to a confidential informant who accompanied an undercover officer while he executed a controlled buy of illegal drugs from defendant.   Although defendant met his initial burden of establishing that the informant was knowledgeable about defendant's identity and would be expected to testify favorably for the People (see, People v. Gonzalez, 68 N.Y.2d 424, 427-428, 509 N.Y.S.2d 796, 502 N.E.2d 583), the People established that the informant's testimony would be cumulative (see, People v. Lewis, 231 A.D.2d 919, 648 N.Y.S.2d 848, lv. denied 89 N.Y.2d 1096, 660 N.Y.S.2d 390, 682 N.E.2d 991;  People v. Solis, 173 A.D.2d 1089, 1091, 570 N.Y.S.2d 703, lv. denied 78 N.Y.2d 974, 574 N.Y.S.2d 954, 580 N.E.2d 426, 78 N.Y.2d 1081, 577 N.Y.S.2d 245, 583 N.E.2d 957).   The controlled buy was observed by another officer who knew defendant, and both officers identified defendant at trial.   In any event, any error in the court's failure to give a missing witness charge is harmless.  “[T]he evidence of defendant's guilt is overwhelming and there is no significant probability ‘that the jury would have acquitted the defendant had it not been for the error’ (People v. Crimmins, 36 N.Y.2d 230, 242 [367 N.Y.S.2d 213, 326 N.E.2d 787])” (People v. Lewis, supra).

Judgment unanimously affirmed.

MEMORANDUM: