PEOPLE v. VASQUEZ

Defendant's request for a missing witness charge with respect to a "ghost" officer was properly denied. Defendant failed to make a prima facie showing that this officer was in a position to observe defendant at any time (see, People v. Kitching, 78 N.Y.2d 532, 537, People v. Moultrie, 267 A.D.2d 181, 700 N.Y.S.2d 815). On the contrary, the evidence established that a testifying "ghost" officer was too far away to observe the portion of the drug transaction that involved defendant, and that the nontestifying officer was even farther away. The challenged portion of the prosecutor's summation was responsive to defendant's summation argument regarding the People's failure to call the witness (see, People v. Overlee, 236 A.D.2d 134 lv denied 91 N.Y.2d 976) and did not suggest that the uncalled witness's testimony would have been incriminating.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.