PEOPLE v. DELACRUZ (2000)

Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered October 15, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the first degree, and sentencing him to a term of 15 years to life, unanimously affirmed.

 Defendant's request for a missing witness charge was properly denied (see, People v. Matthews, 185 A.D.2d 900, 586 N.Y.S.2d 1022, lv. denied 80 N.Y.2d 975, 591 N.Y.S.2d 145, 605 N.E.2d 881).   Although the witness had been a confidential informant, he had left the country of his own volition a year and a half before trial and thus was no longer in the People's control (see, People v. Watkins, 67 A.D.2d 717, 412 N.Y.S.2d 426).   After reasonably diligent efforts to locate him, the People learned that the witness had relocated to a foreign country and had refused to divulge his whereabouts there.   Under the circumstances, renewed efforts to locate him would have been futile.

 The court properly precluded defendant from recalling a police witness to impeach another witness since defendant failed to lay a sufficient foundation for the testimony (see, People v. Duncan, 46 N.Y.2d 74, 80-81, 412 N.Y.S.2d 833, 385 N.E.2d 572, cert. denied 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275;  People v. Rosario, 267 A.D.2d 73, 701 N.Y.S.2d 341, lv. denied 94 N.Y.2d 952, 710 N.Y.S.2d 9, 731 N.E.2d 626).   In any event, the court properly determined that the prospective testimony was collateral (see, People v. Aska, 91 N.Y.2d 979, 674 N.Y.S.2d 271, 697 N.E.2d 172).

 Testimony that an accomplice, who guarded the location of the sale, was armed with a gun was properly admitted since it was probative of the prosecution's claim that defendant acted in concert with others to effect the drug sale, was inextricably interwoven with the events leading to defendant's arrest and was necessary to complete the narrative (see, People v. Till, 87 N.Y.2d 835, 637 N.Y.S.2d 681, 661 N.E.2d 153;  People v. Then, 248 A.D.2d 159, 670 N.Y.S.2d 182, lv. denied 92 N.Y.2d 906, 680 N.Y.S.2d 71, 702 N.E.2d 856).   The testimony was not unduly prejudicial since it was very brief and accompanied by appropriate limiting instructions to the jury (see, People v. Bradley, 256 A.D.2d 55, 682 N.Y.S.2d 135, lv. denied 93 N.Y.2d 871, 689 N.Y.S.2d 433, 711 N.E.2d 647).   The gun was not introduced into evidence or shown to the jury.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.

MEMORANDUM DECISION.