PEOPLE v. WEINSHEIMER

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution ( see People v Hawkins, 11 NY3d 484, 493; People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to prove the physical injury element of burglary in the first degree ( see Penal Law § 140.30; People v Palmer, 190 AD2d 564; cf. People v Hernandez, 82 NY2d 309, 318-319).

The trial court properly denied the defendant's request for a missing witness charge, as the uncalled witness was equally available to both parties, and was not under the control of the People ( see People v Jean-Baptiste, 37 AD3d 852).

"A presentence report may include any relevant information on the history of the defendant ( see CPL 390.30) and may include history not only of prior offenses for which defendant has been convicted, but even offenses for which he has not been convicted" ( People v Whalen, 99 AD2d 883, 884). However, the court "must assure itself that the information upon which it bases the sentence is reliable and accurate" ( People v Outley, 80 NY2d 702, 712). Here, the trial court properly relied on the information in the presentence investigation report in sentencing the defendant.

The sentence imposed was not excessive ( see People v Suitte, 90 AD2d 80, 85).

The defendant's remaining contentions are without merit.