People v. Leon

Appeal by the defendant from a judgment of the County Court, Westchester County (Lange, J.), rendered September 20, 1985, convicting him of criminal sale of a controlled substance in the third degree (three counts), criminal possession of a controlled substance in the third degree (three counts), and criminal possession of a controlled substance in the seventh degree (three counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention that the jury verdict was against the weight of the evidence, upon the exercise of our factual review power (CPL 470.15 [5]) we find that the weight of the evidence adduced at trial clearly established that the defendant was the same individual who made three *611separate cocaine sales to two undercover narcotics police officers in Yonkers between January and June 1984. In this regard, we note that the undercover officers had ample opportunity to observe the defendant under adequate lighting conditions and at close range during the three drug sales, and that the officers observed the defendant in the vicinity of the sales on numerous occasions during the course of a six-month-long investigation.

Additionally, we find that the trial court did not err in denying the defendant’s request for a missing witness charge, as the defendant failed to demonstrate that this witness would have offered something other than cumulative testimony at trial or that he was under the control of the People (see, People v Gonzalez, 68 NY2d 424; People v Rose, 126 AD2d 581).

We have considered the defendant’s remaining contentions and find them to be without merit. Lawrence, J. P., Harwood, Balletta and Rosenblatt, JJ., concur.