People v. Farrow

Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered on March 29, 1988, convicting defendant, after a jury trial, of two counts of robbery in the second degree (Penal Law § 160.10 [1], [2] [b]) and sentencing him to concurrent, indeterminate terms of imprisonment of from 7 Vi to 15 years, unanimously affirmed.

Shortly after midnight on September 15, 1987, defendant and Raphael Leach approached complainant and his companion as they sat in complainant’s car in the West Village, and robbed them at gunpoint. On appeal, defendant maintains that the trial court erred in denying his request for a missing witness charge with respect to the complainant’s fellow passenger.

Our review of the record fails to establish that the passenger was under the control of the People and that the expected testimony would not be trivial or cumulative. Accordingly, the trial court properly refused to issue a missing witness charge. (See, People v Gonzalez, 68 NY2d 424, 427.)

*377We have considered defendant’s other contention on appeal, and find it to be without merit. Concur—Kupferman, J. P., Ross, Kassal and Rubin, JJ.