Opinion
March 17, 1995
Appeal from the Supreme Court, Monroe County, Doyle, J.
Present — Denman, P.J., Green, Fallon, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted of assault in the second degree (Penal Law § 120.05) and criminal possession of a weapon in the second degree (Penal Law § 265.03) stemming from the events of October 25, 1991, when he shot the victim in the face.
There is no merit to the contention of defendant that Supreme Court erred when it refused to grant his request for a missing witness charge concerning two men who were present at the scene of the shooting. Defendant failed to make the requisite prima facie showing that the missing witnesses could be expected to testify favorably to the prosecution (see, People v. Macana, 84 N.Y.2d 173, 177; People v. Gonzalez, 68 N.Y.2d 424). Additionally, the evidence adduced at trial supports the court's conclusion that, because the men were accomplices likely to invoke the Fifth Amendment privilege against self-incrimination, a missing witness charge was inappropriate (see, People v. Macana, supra, at 177-178; People v. Rodriguez, 38 N.Y.2d 95, 98).