PEOPLE v. GONZALEZ

Judgment affirmed.

Contrary to defendant's contention on appeal, the Trial Judge did not err in denying his motion to dismiss based upon the People's failure to prove a prima facie case of criminal possession of a weapon in the third degree. Eyewitness testimony set forth the requisite elements of knowing possession of a loaded firearm (Penal Law, § 265.02, subd. [4]; People v Cohen, 57 A.D.2d 790). Nor was it error for the Trial Judge to deny defendant's request for a missing witness charge; potential witnesses were not under the influence or control of the People so as to trigger the need for such instructions ( People v Dillard, 96 A.D.2d 112; People v Alamo, 63 A.D.2d 6). Finally, defendant's sentence of five years' probation is not harsh or excessive in light of the seven-year maximum term of imprisonment which he could have received (Penal Law, § 70.00, subd. 2, par [d]). Thompson, J.P., Weinstein, Rubin and Lawrence, JJ., concur.