PEOPLE v. GILMORE (2000)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. James GILMORE, appellant.

Decided: March 06, 2000

FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN and GLORIA GOLDSTEIN, JJ.

M. Sue Wycoff, New York, N.Y. (Alexander A. Sierck of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, Joan Yang, and Daniel Deachin of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robinson, J.), rendered July 22, 1997, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, he was not entitled to a missing witness charge with respect to a police sergeant who was part of the field team in a so-called “buy and bust” operation. The defendant failed to establish that the witness was knowledgeable about a material issue pending in the case, i.e., the defendant's identity as the perpetrator (see, People v. Kitching, 78 N.Y.2d 532, 577 N.Y.S.2d 231, 583 N.E.2d 944).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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