People v. Paul , 732 N.Y.S.2d 861 ( 2001 )

—Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered July 20, 1999, convicting defendant, after a jury trial, of robbery in the first degree, burglary in the second degree and possession of burglar’s tools, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, 16 years to life, and one year, respectively, unanimously affirmed.

Defendant’s request for a missing witness charge was properly denied since there was no showing that the witness would have provided testimony concerning a material issue (see, People v Gonzalez, 68 NY2d 424, 427-428). In any event, were we to find any error in this regard, we would find it to be harmless.

Defendant’s constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (People v Rosen, 96 NY2d 329, cert denied — US —, 122 S Ct 224). Concur — Rosenberger, J. P., Tom, Rubin, Buckley and Marlow, JJ.