PEOPLE v. VARGAR (2002)

Judgment, Supreme Court, New York County (John Cataldo, J.), rendered March 22, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

 The verdict was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Issues of credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury and there is no basis upon which to disturb its determinations.   Defendant points to minor inconsistencies or discrepancies which in no way undermine the testimony of the undercover officers.

 The court properly denied defendant's request for a missing witness charge.   Defendant failed to make a prima facie showing that the unidentified token booth clerk was knowledgeable about any material issue in this case (see, People v. Gonzalez, 68 N.Y.2d 424, 427-428, 509 N.Y.S.2d 796, 502 N.E.2d 583;  see also, People v. Kitching, 78 N.Y.2d 532, 577 N.Y.S.2d 231, 583 N.E.2d 944).   Although the drug exchange took place in the vicinity of a token booth, the subway station was very busy and there was no evidence whatsoever that the clerk had any view of the drug transaction.   Furthermore, there was no prima facie showing of “control” for the purpose of a missing witness charge (see, People v. Gonzalez, supra ).   The clerk was not employed by a law enforcement agency and had no relationship to the prosecution that would warrant a finding of “control.”