People v. Parris

Judgment, Supreme Court, New York County (Marcy Kahn, J.), rendered December 22, 1994, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 3 to 9 years, unanimously affirmed. The court properly declined to give the jury a missing witness instruction with respect to a cab driver who dropped the complainant off at a police car following the robbery since defendant failed to establish that the driver, who was not present during the robbery, was knowledgeable with respect to a material issue in the case and was expected to testify favorably to 222 the People (People v Gonzalez, 68 NY2d 424). Moreover, the People demonstrated that the unidentifiable witness was not available or under their control. Police testimony that the complainant entered the police car and pointed out the back of the car window towards the defendants completed the narrative and explained the officers’ subsequent conduct (see, People v Jones, 160 AD2d 333, lv denied 76 NY2d 790). Even if “inferential bolstering” had occurred, it would have been harmless error in view of the overwhelming evidence of defendant’s guilt (see, People v Johnson, 57 NY2d 969, 970). Concur — Milonas, J. P., Rosenberger, Ellerin and Tom, JJ.