PEOPLE v. MULERO

Ordered that the judgment and the amended judgment are affirmed.

Contrary to defendant's contention, he was not entitled to a missing witness charge in connection with his conviction under Indictment No. 12246/89 because the People failed to call a witness who saw the incident. That witness, through his lawyer, refused to testify, rebutting the defendant's prima facie showing of entitlement to the charge ( see, People v. Macana, 84 N.Y.2d 173).

The defendant's sentence is not excessive ( see, People v Suitte, 90 A.D.2d 80). O'Brien, J.P., Sullivan, Florio and McGinity, JJ., concur.