Under the standards set forth in People v. Bleakley ( 69 N.Y.2d 490, 494-495), defendant's guilt was proven beyond a reasonable doubt and the verdict was not against the weight of the evidence. Although the infant missing witness would have provided material, noncumulative evidence, her residence in England and the refusal of her family to permit her further involvement rendered her unavailable to the People and not under their control. As such, the court did not err in refusing to give a missing witness instruction. Counsel's failure to object to the court's curative instructions, which the jury is presumed to have followed, renders the claim unpreserved as a matter of law (People v Santos, 193 A.D.2d 560, lv denied 81 N.Y.2d 1080).
For the reasons stated in codefendant Pagano's appeal, we hold this appeal in abeyance and remand for a Batson hearing (People v. Pagano, supra).
We have reviewed defendant's remaining contentions and find them to be without merit.
Concur — Rosenberger, J.P., Ellerin, Ross, Rubin and Williams, JJ.