People v. Watson , 633 N.Y.S.2d 15 ( 1995 )

—Judgment, Supreme Court, Bronx County (Richard Lee Price, J.), rendered February 17, 1994, convicting defendant, after a jury trial, of promoting prison contraband in the first degree and assault in the third degree, and sentencing him, as a second felony offender, to concurrent prison terms of 3 to 6 years and 1 year, respectively, unanimously affirmed.

The trial court properly refused defendant’s request for a missing witness charge as to a correction officer who may have been in a position to view the assault. Defendant failed to demonstrate that this uncalled witness viewed anything different from what the testifying officer saw (People v Ortiz, 83 NY2d 989). The trial court also properly denied a missing witness charge with respect to another correction officer whom defendant claims would have provided testimony concerning the chain of custody of the razor. This witness’s testimony would have been immaterial since the razor was not introduced into evidence, and, in any event, would have constituted hearsay (People v Small, 201 AD2d 315, 316, Iv denied 83 NY2d 876). Concur—Murphy, P. J., Sullivan, Rosenberger, Ross and Tom, JJ.