People v. Bostick , 150 A.D.2d 707 ( 1989 )

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ramirez, J.), rendered February 19, 1982, convicting him of criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree and unlawful possession of marihuana, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (People v Contes, 60 NY2d 620), we find it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]).

We find unavailing the defendant’s claim that the trial court erred in failing to give a missing witness charge regarding the prosecution’s failure to call a confidential informant. It is well settled that the mere failure of a party to produce a witness at trial, standing alone, is insufficient to justify a missing witness charge. "Rather, it must be shown that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and the witness is available to [and in the control of] such party” (People v Gonzalez, 68 NY2d 424, 427; People v Bartolomeo, 126 AD2d 375, 392, lv denied 70 NY2d 702). In the instant case, it is clear from the record that the witness was unavailable and not in the control of the prosecution (see, People v Morris, 140 AD2d 551, lv denied 72 NY2d 922).

Finally, the closure of the courtroom during the testimony of the undercover officer was proper, since it was determined at a hearing that the undercover officer was still operating in the community and closure was necessary to protect his safety and the integrity of ongoing investigations (see, People v Hinton, 31 NY2d 71, cert denied 410 US 911; People v Gonzalez, 135 AD2d 829). Bracken, J. P., Lawrence, Harwood and Balletta, JJ., concur.