PEOPLE v. WHITEHURST (2001)

Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered June 12, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to concurrent terms of 7 1/212 to 15 years, and judgment, same court and Justice, rendered September 25, 1998, convicting defendant, upon her plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing her as a second felony offender, to a concurrent term of 4 1/212 to 9 years, unanimously affirmed.

The court properly refused to give a missing witness charge regarding a “ghost” undercover officer since defendant failed to make a prima facie showing that the officer in question was in a position to observe the drug transaction (People v. Kitching, 78 N.Y.2d 532, 577 N.Y.S.2d 231, 583 N.E.2d 944;  People v. Vasquez, 272 A.D.2d 226, 709 N.Y.S.2d 395, lv. denied 95 N.Y.2d 872, 715 N.Y.S.2d 227, 738 N.E.2d 375).   The purchasing undercover officer clearly testified that he did not see the ghost until the transaction was over, and that the ghost was a block away.   Even if the ghost was in a position to see the undercover officer at some point during or immediately after the transaction, it does not follow that the ghost was in a position to see the exchange of drugs for money.

We perceive no basis for reduction of sentence.