PEOPLE v. WILLIAMS (2008)

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered November 22, 2005, convicting him of criminal sale of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The County Court properly denied the defendant's request for a missing witness charge.   A missing witness charge is appropriate where it is shown that “the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case;  that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party” (People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583).   The People demonstrated that they exerted diligent efforts to locate the uncalled witness without success (see People v. Aguirre, 201 A.D.2d 485, 486, 607 N.Y.S.2d 398).

Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.