People v. Calderon , 725 N.Y.S.2d 909 ( 2001 )

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of criminal possession of a weapon in the second degree (Penal Law former § 265.03) and criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]), defendant’s sole contention is that County Court erred in refusing to give a missing witness charge. We reject that contention. The record supports the court’s conclusion that the account of the nontestifying witness would have been cumulative to that of the two eyewitnesses who testified for the prosecution (see, People v Macana, 84 NY2d 173, 180; People v Ortiz, 83 NY2d 989, 990-991; People v Blake, 278 AD2d 887; People v Early, 266 AD2d 881, 881-882, lv denied 94 NY2d 918). “There is nothing in the record to indicate that the missing [witness] would have testified differently [from the other prosecution witnesses] or in accordance with defendant’s claim” (People v Macana, supra, at 180; see also, People v Buckler, 39 NY2d 895, 897). (Appeal from Judgment of Monroe County Court, Marks, J. — Criminal Possession Weapon, 2nd Degree.) Present — Green, J. P., Pine, Hurlbutt, Kehoe and Burns, JJ.