Appellate Division of the Supreme Court of New York, 1987

People v. Whetstone

People v. Whetstone
Appellate Division of the Supreme Court of New York · Decided May 22, 1987
130 A.D.2d 969; 516 N.Y.S.2d 151; 1987 N.Y. App. Div. LEXIS 46955
People v. Whetstone

Opinion of the Court

Judgment unanimously affirmed. Memorandum: The trial court properly declined to give a missing witness charge. The whereabouts of the witness was unknown. The prosecutor and the police tried, without success, to locate the witness and serve him with a material witness warrant.. Hence, the witness was not available to, or under the control of, the People (see, People v McCullers, 119 AD2d 835, 836, Iv denied 68 NY2d 758; People v Geoghegan, 68 AD2d 279, 286, affd 51 NY2d 45; People v Williams, 34 AD2d 1046). We have considered defendant’s remaining claims and find them lacking in merit. (Appeal from judgment of Supreme Court, Erie County, McGowan, J.—burglary, third degree.) Present—Callahan, J. P., Doerr, Green, Balio and Law-ton, JJ.

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