The trial court appropriately exercised its discretion in denying defendant's request for a missing witness charge on the basis of the witness's unavailability, since the witness, a resident of Belgium, was not subject to subpoena, and the People's efforts were sufficient, under the circumstances, to ascertain that the witness was unwilling to return to New York voluntarily ( see, People v. Mancini, 207 A.D.2d 730). Moreover, the testimony involved would not have been non-cumulative and even were we to find the denial of the missing witness charge to be erroneous, we would find such error to be harmless because of the overwhelming evidence of defendant's guilt and the circumstance that defendant received ample latitude to comment on the witness's absence.
Concur — Ellerin, J. P., Nardelli, Williams and Andrias, JJ.