PEOPLE v. McCALLA (1999)

Defendant was convicted of criminal possession of a controlled substance in the second degree (Penal Law § 220.18[1] ) and criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) after police recovered a quantity of cocaine thrown by defendant from his motor vehicle during a high speed chase.

The sole argument of defendant on appeal is that County Court erred in denying his request for a missing witness charge with respect to a police officer who did not testify.   Although defendant met his initial burden of demonstrating his entitlement to the charge (see, People v. Kitching, 78 N.Y.2d 532, 536-537, 577 N.Y.S.2d 231, 583 N.E.2d 944;  People v. Gonzalez, 68 N.Y.2d 424, 427-428, 509 N.Y.S.2d 796, 502 N.E.2d 583), the court properly refused to give the requested charge on the ground that the testimony of that police officer would have been cumulative to other evidence (see, People v. Macana, 84 N.Y.2d 173, 180, 615 N.Y.S.2d 656, 639 N.E.2d 13;  People v. Ortiz, 83 N.Y.2d 989, 616 N.Y.S.2d 333, 639 N.E.2d 1130;  People v. Maddox [appeal No. 1], 256 A.D.2d 1066, 685 N.Y.S.2d 149).   Three other officers who actively participated in the chase and defendant's apprehension testified at trial, and the court received in evidence the written admission of defendant that he threw the cocaine from the window of his vehicle during the course of the high speed chase.

Judgment unanimously affirmed.

MEMORANDUM: