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

The PEOPLE of the State of New York, Respondent, v. Lola McBRIDE, Defendant-Appellant.

Decided: May 18, 2000

WILLIAMS, J.P., TOM, MAZZARELLI and BUCKLEY, JJ. David S. Weisel, for Respondent. Solomon J. Schepps, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (John Stackhouse, J.), rendered July 1, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

Defendant's request for a missing witness charge was properly denied.   Defendant failed to meet her initial burden of showing that the uncalled police witness overheard a transmission of the drug transaction or that, even if he heard the transmission, he could have been expected to provide material and noncumulative testimony (see, People v. Dianda, 70 N.Y.2d 894, 524 N.Y.S.2d 381, 519 N.E.2d 292;  People v. Shaw, 214 A.D.2d 472, 626 N.Y.S.2d 65, lv. denied 86 N.Y.2d 802, 632 N.Y.S.2d 515, 656 N.E.2d 614).