PEOPLE v. ORTIZ (2007)

Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered April 7, 2005 convicting defendant, after a jury trial, of rape in the first degree and two counts of course of sexual conduct against a child in the first degree, and sentencing him to concurrent terms of 15 years, unanimously affirmed.

The court properly denied defendant's request for a missing witness charge as to the victim's brother, since defendant did not establish that he was in a position to see or hear any of the events at issue, and thus to provide material testimony as to whether or not they occurred (see People v. Dianda, 70 N.Y.2d 894, 524 N.Y.S.2d 381, 519 N.E.2d 292 [1987] ).   Moreover, after unsuccessfully requesting a missing witness instruction, defense counsel interviewed the witness, chose not to call him, and made a statement to the court that effectively conceded that the witness could not supply any material testimony (see People v. Brownlee, 199 A.D.2d 520, 606 N.Y.S.2d 26 [1993], lv. denied 83 N.Y.2d 869, 613 N.Y.S.2d 130, 635 N.E.2d 299 [1994] ).   Defendant's claim that the brother's testimony was material because he was a prompt outcry witness is unpreserved and we decline to review it in the interest of justice.   Were we to review it, we would find it without merit.