Opinion
May 29, 1990
Appeal from the Supreme Court, Kings County (Quinones, J.).
Ordered that the judgment and sentence are affirmed.
The defendant argues that the trial court erred in refusing to grant his request for a missing witness charge regarding the prosecutor's failure to call as a witness a friend of the complainant who was present during the robbery. We disagree. The trial court properly concluded that this witness was not under the control of the prosecution since there was no indication that although available to both sides, the witness was favorable to or under the influence of one party and hostile to the other (see, People v. Gonzalez, 68 N.Y.2d 424). While the witness may have been a one-time friend of the complainant, the record fails to reveal any predilection on the part of the witness to testify favorably to the prosecution (see, People v Sykes, 151 A.D.2d 523; People v. Bessard, 148 A.D.2d 49; People v Mendez, 138 A.D.2d 637).
We note that on appeal, as limited by his brief, the defendant does not seek a vacatur of his guilty plea under indictment No. 3283/86; rather, he contends only that the sentence was excessive. However, under the circumstances of this case, we see no reason to disturb the sentence imposed by the court under this indictment or under indictment No. 4117/86 (see, People v Suitte, 90 A.D.2d 80; People v. Roman, 84 A.D.2d 851). Mangano, P.J., Brown, Sullivan and Balletta, JJ., concur.