Judgment affirmed.
We reject defendant's claim that the trial court erred in denying defense counsel's motion to dismiss the indictment for failure to prove a prima facie case, and we note that defendant's guilt was proven beyond a reasonable doubt by overwhelming evidence. We also note that it was not error for the trial court to deny defendant's request for a missing witness charge, since the witness in question, Officer Mazelli, was then under indictment for burglary and was not under the control of the People. In any event there is no showing that Mazelli's testimony would have been other than cumulative ( see, People v. Almodovar, 62 N.Y.2d 126, 132-133; People v. Dillard, 96 A.D.2d 112, 115). Mollen, P.J., Titone, Lazer and Rubin, JJ., concur.