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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GARY WILLIAMS, Appellant.

Ordered that the judgment is affirmed.

The County Court properly denied the defendant's request for a missing witness charge. A missing witness charge is appropriate where it is shown that "the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party" ( People v Gonzalez, 68 NY2d 424, 427). The People demonstrated that they exerted diligent efforts to locate the uncalled witness without success ( see People v Aguirre, 201 AD2d 485, 486).

Upon the exercise of our factual review power ( see CPL 470.15), we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v Romero, 7 NY3d 633).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.

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PEOPLE v. WILLIAMS
(Jan 22, 2008)