PEOPLE v. MOULTRIE

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility were properly presented to the jury and we find no reason to disturb its determination.

Defendant failed to make a prima facie showing that the second "ghost" officer was in a position to hear the conversations or observe the events that were in dispute with respect to defendant's agency defense. Therefore, defendant was not entitled to a missing witness charge based on the prosecution's failure to call the officer as a witness (see, People v. Kitchings, 78 N.Y.2d 532, 537).

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.

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