Opinion
Decided February 5, 1998
Appeal from the Supreme Court, New York County (Marcy Kahn, J.).
The court properly declined to give the jury a missing witness instruction with respect to a cab driver who dropped the complainant off at a police car following the robbery since defendant failed to establish that the driver, who was not present during the robbery, was knowledgeable with respect to a material issue in the case and was expected to testify favorably to the People (People v. Gonzalez, 68 N.Y.2d 424). Moreover, the People demonstrated that the unidentifiable witness was not available or under their control. Police testimony that the complainant entered the police car and pointed out the back of the car window towards the defendants completed the narrative and explained the officers' subsequent conduct (see, People v. Jones, 160 A.D.2d 333, lv denied 76 N.Y.2d 790). Even if "inferential bolstering" had occurred, it would have been harmless error in view of the overwhelming evidence of defendant's guilt (see, People v. Johnson, 57 N.Y.2d 969, 970).
Concur — Milonas, J. P., Rosenberger, Ellerin and Tom, JJ.