PEOPLE v. HINTON

Ordered that the judgment is affirmed.

The trial court properly denied the defendant's request for a missing witness charge regarding the People's failure to call the second arresting officer to testify, since the officer's testimony would have been cumulative (see, People v. Gonzalez, 68 N.Y.2d 424, 428). In any event, the prosecution offered to make the officer available to the defendant, yet the defendant declined to call him as a witness, and the trial court permitted the defense counsel to argue on summation that the jury could draw the negative inference from the People's failure to call the officer (see, People v. Sykes, 151 A.D.2d 523, 524; see also, People v. Mendez, 138 A.D.2d 637, 638).

The defendant's remaining contention is unpreserved for appellate review (see, CPL 470.05; see, People v Starling, 85 N.Y.2d 509; People v. Udzinski, 146 A.D.2d 245). Thompson, J.P., Santucci, Friedmann and Florio, JJ., concur.