People v. McCullers

— Appeal by the defendant from a judgment of the County Court, Westchester County (Leggett, J.), rendered September 15, 1981, convicting him of robbery in the second degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence. [836] Judgment affirmed. The court properly declined to give a missing witness charge as to Donald Johnson whom the robbery victim testified was with him when the robbery occurred. Three police witnesses testified that they made diligent attempts to locate and subpoena Johnson and produce him at trial but were unsuccessful. Hence the evidence established that Johnson was not under the "control of’ and "available to” the People (1 CJI § 8.53, pp 443, 449-451; cf. People v Geoghegan, 68 AD2d 279, 286, affd 51 NY2d 45; People v Williams, 34 AD2d 1046). We have examined the defendant’s remaining contentions and have found them to be without merit. Thompson, J. P., Lawrence, Eiber and Spatt, JJ., concur.