People v. Moultrie

—Judgment, Supreme Court, New York County (Ira Beal, J.), rendered April 9, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4V2 to 9 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility were properly presented to the jury and we find no reason to disturb its determination.

Defendant failed to make a prima facie showing that the second “ghost” officer was in a position to hear the conversations or observe the events that were in dispute with respect to defendant’s agency defense. Therefore, defendant was not entitled to a missing witness charge based on the prosecution’s failure to call the officer as a witness (see, People v Kitching, 78 NY2d 532, 537).

Defendant’s remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur — Sullivan, J. P., Nardelli, Rubin, Andrias and Friedman, JJ.