December 10, 2013
The People of the State of New York, Ind. Respondent,
Felix Velez, Defendant-Appellant.
Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Karen Swiger of counsel), for respondent.
Tom, J.P., Friedman, Acosta, Moskowitz, Gische, JJ.
Judgment, Supreme Court, Bronx County (Robert E. Torres, J.), rendered November 21, 2008, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to a term of 5 years, unanimously affirmed.
The court properly denied defendant's request for a missing witness charge, since there was no evidence that the uncalled officer could have provided material, noncumulative testimony. The trial evidence failed to establish that this officer was in a position to see the transaction (see People v Dianda, 70 N.Y.2d 894 ; People v Brunner, 67 A.D.3d 464, 465 , affd 16 N.Y.3d 820 ; compare People v Kitching, 78 N.Y.2d 532, 538 ). The court accorded defendant sufficient scope in which to comment in summation on this officer's absence, and it properly exercised its discretion in limiting defense arguments on this issue. In any event, we find that any error in the court's denial of a missing witness charge or in its limitations on defendant's summation was harmless (see People v Thomas, 21 N.Y.3d 226, 231 ).