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

The PEOPLE of the State of New York, Respondent, v. Clifton WILLIAMSON, Appellant.

Decided: November 25, 1998

Before:  CARDONA, P.J., PETERS, SPAIN, CARPINELLO and GRAFFEO, JJ. Eugene P. Devine, Public Defender (Jeanne M. Heran of counsel), Albany, for appellant. Sol Greenberg, District Attorney (Mirriam Z. Seddiq of counsel), Albany, for respondent.

Appeal from a judgment of the County Court of Albany County (Duggan, J.), rendered November 22, 1996, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree.

On June 16, 1995, defendant was arrested on a warrant.   During a search incident to his arrest, the arresting police officers found 38 plastic baggies filled with crack cocaine in defendant's pocket and mouth.   Defendant was subsequently convicted of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree and was sentenced to concurrent prison terms of 6 to 18 years and 5 to 15 years, respectively.   Defendant appeals his conviction contending that County Court's refusal to grant his request for a missing witness charge constitutes reversible error.   We disagree.

Defendant testified at trial that he was not aware that he had drugs on him and that the drugs were found in a brown bag that his friend had given to him.   Two police officers testified that when one of them patted down defendant, he found a plastic bag with 35 baggies in defendant's pocket and three more in defendant's mouth.

Defendant requested a missing witness charge for a man who was being held in the back of the police officer's car when they stopped and arrested defendant, contending that the witness would have provided relevant testimony regarding the stop.   County Court denied defendant's request.   We agree that defendant's proffer was insufficient to justify the missing witness charge (see, People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583).   Defendant failed to meet his burden by establishing that the witness would have given favorable, noncumulative testimony or that the witness was under the People's control or cooperated with law enforcement officials (see, People v. Hamilton, 252 A.D.2d 826, 677 N.Y.S.2d 401;  People v. Townsley, 240 A.D.2d 955, 957, 659 N.Y.S.2d 906, lv. denied 90 N.Y.2d 943, 664 N.Y.S.2d 762, 687 N.E.2d 659;  People v. Miller, 235 A.D.2d 568, 570, 652 N.Y.S.2d 790;  People v. Bessard, 148 A.D.2d 49, 54, 543 N.Y.S.2d 760, lv. denied 74 N.Y.2d 845, 546 N.Y.S.2d 1010, 546 N.E.2d 193).

In any event, upon our review of the record, we do not believe that had the missing witness charge been given there is a significant probability that a contrary verdict would have resulted (see, People v. Crimmins, 38 N.Y.2d 407, 411-412, 381 N.Y.S.2d 1, 343 N.E.2d 719;  People v. Wills, 183 A.D.2d 938, 583 N.Y.S.2d 561, lv. denied 80 N.Y.2d 935, 589 N.Y.S.2d 863, 603 N.E.2d 968;  see also, People v. Jacobs, 148 A.D.2d 811, 814, 538 N.Y.S.2d 647, appeal dismissed 74 N.Y.2d 897, 548 N.Y.S.2d 430, 547 N.E.2d 957).

ORDERED that the judgment is affirmed.



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