Opinion
October 26, 1995
Appeal from the Supreme Court, Bronx County (Richard Lee Price, J.).
The trial court properly refused defendant's request for a missing witness charge as to a correction officer who may have been in a position to view the assault. Defendant failed to demonstrate that this uncalled witness viewed anything different from what the testifying officer saw ( People v. Ortiz, 83 N.Y.2d 989). The trial court also properly denied a missing witness charge with respect to another correction officer whom defendant claims would have provided testimony concerning the chain of custody of the razor. This witness's testimony would have been immaterial since the razor was not introduced into evidence, and, in any event, would have constituted hearsay ( People v. Small, 201 A.D.2d 315, 316, lv denied 83 N.Y.2d 876).
Concur — Murphy, P.J., Sullivan, Rosenberger, Ross and Tom, JJ.