Opinion
October 7, 1992
Appeal from the Wayne County Court, Strobridge, J.
Present — Boomer, J.P., Pine, Lawton, Fallon and Doerr, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's contention that County Court erred in refusing his request for a missing witness charge. Defendant failed to meet his burden to establish that the unidentified individual could be expected to give non-cumulative testimony favorable to the People or that the witness was otherwise under their control (see, People v Kitching, 78 N.Y.2d 532, 536; People v Gonzalez, 68 N.Y.2d 424, 427-428; see also, People v Dianda, 70 N.Y.2d 894, rearg denied 71 N.Y.2d 890; People v McKnight, 179 A.D.2d 996, lv denied 79 N.Y.2d 1004; People v Robinson, 174 A.D.2d 998, 1000, lv denied 78 N.Y.2d 1014; People v Devonshire, 151 A.D.2d 1012, lv denied 74 N.Y.2d 846). The issue whether a Gaines error (see, People v Gaines, 74 N.Y.2d 358) was committed in the court's charge on the burglary counts has not been preserved for our review (see, CPL 470.05) and we decline to reach it in the interest of justice. Defendant has also failed to preserve for our review his contention that County Court erred in instructing the jury on reasonable doubt and we decline to reach it in the interest of justice.