In People v Congilaro (159 A.D.2d 964, 965) the Appellate Division, Fourth Department, upheld a trial court's denial of defendant's request for a missing witness charge when the defendant's girlfriend failed to testify at trial.Summary of this case from People v. Modeste
March 16, 1990
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Callahan, J.P., Doerr, Green, Pine and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that the trial court erred in refusing his request to instruct the jury that they could draw an unfavorable inference from the People's failure to call defendant's girlfriend as a witness. Since defendant's girlfriend, after providing testimony favorable to the People before the Grand Jury, recanted that testimony and provided defense counsel with a statement that exculpated defendant, the trial court properly denied defendant's request for a missing witness charge because she could not reasonably be expected to testify in the People's favor (see, People v Gonzalez, 68 N.Y.2d 424, 427). Additionally, because no objection was made to the trial court's jury instruction on justification, any error in this regard has not been preserved for our review as a matter of law (CPL 470.05). We see no basis to review it as a matter of discretion in the interest of justice.
We have reviewed defendant's remaining contention and find it to be without merit.