I respectfully dissent and would affirm the judgment of conviction.
The arresting officer, Detective Michael Hernandez, and an undercover officer identified by shield number UC 22152 were assigned to an upper Manhattan location to conduct a drug buy. The credentials of UC 22152 as an experienced undercover officer who had participated in over 100 drug operations were established in testimony. UC 22152, along with two other undercover officers, also identified by their shield numbers, drove their unmarked car to the location, as the arresting officer separately drove with two other officers and parked nearby. Although it is less than clear in the testimony, in that the three undercovers were conducting several operations and switched on and off in their individual roles, it appears from the testifying undercover’s testimony that one or both of the others acted as ghosts on this buy. In any event, the matter was not clarified on cross-examination.
UC 22152 walked up to a group of people and asked who was “working.” Defendant, standing nearby on the corner down the block from a school, made eye contact with him. UC 22152 testified that defendant was a Black male wearing a beige shirt, denims, and a blue hat with white flowers—a description that fit no one else nearby. Defendant asked the undercover what he was looking for, and when the undercover responded “viagra,” the name of a brand of heroin, defendant stated that he only had “2000,” another heroin brand. The undercover indicated that was acceptable and then asked for “two,” and defendant accepted $20 in buy money. Defendant then walked over to another man, described as “J.D. Shorty,” handed the buy money to “Shorty,” who gave defendant two glassines which were later determined to contain heroin, which defendant then gave to the undercover. The undercover then returned to his car and, within two minutes of the purchase, transmitted the relevant details and the description of the seller. Within seconds, Detective Hernandez drove up and arrested defendant, who was walking away from the buy location and who was the only person whose appearance matched the transmitted description. UC 22152 drove *219by within minutes and made a confirmatory identification, and also identified defendant later at trial. Neither drugs nor buy money were recovered from defendant but the evidence established that he had given the money to “Shorty” and not held the stash and thus the absence of such evidence does not detract from the overwhelming evidence of defendant’s sale to the undercover officer (People v Rodriguez, 211 AD2d 518 [1995], lv denied 85 NY2d 865 [1995]; People v Diaz, 197 AD2d 379 [1993], lv denied 82 NY2d 893 [1993]). The site of the sale to PS 192 was approximately 265 feet. The other undercover officers, who might have acted as ghosts, did not testify; as noted, apparently, other undercover buys were made subsequent to the one for which defendant was arrested in which they appeared to participate.
Defendant at trial pursued a defense of mistaken identification. Defendant elicited the arresting officer’s testimony that he had not seen the sale and that this was a busy intersection. However, a review of the record reveals that the evidence of identification was overwhelming. Testimony established that a ghost officer might, or might not, be assigned to witness the sale, but his or her primary function would be to protect the purchasing officer and, if feasible, impede flight. During summations, defense counsel said, “Let’s say something about the ghost who did not show up here,” but directed his comments to the difficulty of a ghost seeing anything clearly in that particular location in further support of the defense of mistaken identification.
On appeal, defendant claims that the focus of the defense was on the People’s failure to call the ghost officer to testify, but that is not borne out in the actual summation or in cross-examination. Defendant’s failure to request a missing witness charge belies his position on appeal. Rather, in summing up, counsel appeared to suggest that the purchasing undercover officer was not even kept under observation, stating: “What were they doing if they didn’t see anything? And that’s what you have here, a situation where the ghost would truly ghost. There was—They were so ghost-like, they didn’t exist at all.”
The court instructed the jury that it should
“decide this case solely on the basis of the evidence or lack of evidence actually presented to you in this courtroom ... Do not speculate on the whereabouts of people whose names are mentioned as having *220been at the alleged scene of the crime who were not called as witnesses. No one is required to come to court and testify. Don’t speculate on their nonappearance, or what they might have said if they would have come. Judge the evidence that you saw and heard here which you actually saw and heard in this courtroom. Does that evidence convince you beyond a reasonable doubt or not; is it sufficient or is it insufficient.”
The court went on to instruct the jury that reasonable doubt may be based on “reason, common sense, not some vague speculative or imaginary doubt, but a doubt that will cause a reasonable person to hesitate to act in a matter of this importance,” that it must be based on “the evidence or lack of evidence,” and that “doubt of guilt is not reasonable if, instead of being based on the quality of the evidence or the insufficiency or lack of evidence, it is based on speculation about things not in evidence, guesswork, surmise, conjecture or whim.”
Thus, the court adequately charged the jurors that they could consider the lack of evidence in reaching their verdict. When counsel later stated that these parts of the charge were inconsistent, the court responded that it properly directed the jury not to “speculate” about matters not in evidence, which was different from its direction that they may “consider” the lack of evidence and, hence, there was no inconsistency. There appears to have been an off-the-record discussion regarding the court’s handwritten addition to the charge. Counsel appeared to have said that the court read part of the handwritten addition which it had excluded, but counsel has failed to preserve a clear record as to that discussion or what, specifically, the court’s handwritten addition stated. In any event, no further objection ensued and no due process claim was then made, leaving it unpreserved for review (People v Kello, 96 NY2d 740 [2001]; People v Mendez, 302 AD2d 300 [2003], lv denied 100 NY2d 540 [2003]).
On this record, review in the interest of justice is unwarranted. The court properly focused on the prohibition against juror speculation, and the charge otherwise conveyed appropriate principles of law. Given the overwhelming evidence of guilt, any error was harmless as a matter of law (People v Márchese, 224 AD2d 341 [1996], lv denied 88 NY2d 989 [1996]).
Defendant now claims that the court’s instructions were contradictory and that they undercut a defense based on the People’s failure to call the ghost officer to testify. However, it is *221the purported defense that is contradicted by the record. Not only has the defense theory undergone a remarkable transformation since the trial, the position taken on appeal asserts that the court erred in failing to permit defendant to present a missing witness defense when no such charge was ever requested.
The majority’s position is similarly inconsistent. Conceding that the court correctly instructed the jurors not to speculate about testimony that might have been given by witnesses the prosecution did not call, it is asserted that the court was nevertheless required to affirmatively instruct the jurors that they might draw an adverse inference from the People’s failure to call such other witnesses. The latitude granted to comment, in good faith, on the failure to produce a witness in the absence of criteria warranting a missing witness charge does not impose any obligation on the court to affirmatively instruct the jurors that an adverse inference may be drawn (People v Tankleff, 84 NY2d 992, 994 [1994]). Moreover, unlike the situation in Tankleff, it has not been demonstrated that the People’s uncalled witness “had material, noncumulative information about the case” (id. at 995). The defense argued, on summation, that no ghost officer was in a position to clearly observe the transaction (see People v Vasquez, 272 AD2d 226 [2000], lv denied 95 NY2d 872 [2000]; People v Ortiz, 193 AD2d 449, 451 [1993], affd 83 NY2d 989 [1994]; cf. People v Kitching, 78 NY2d 532, 536 [1991]). Counsel therefore had no good faith basis to comment on the People’s failure to call the ghost officer to give testimony. Thus, to the extent that the court’s instruction might be said to have precluded the jurors from drawing an adverse inference, it was entirely appropriate (Tankleff, 84 NY2d at 994). Finally, rather than “the mainstay of the defense,” as defendant now maintains, counsel’s brief allusion to the People’s failure to produce the witness was merely tangential.
An adverse inference instruction is appropriately obtained by requesting a missing witness charge, supported by the necessary showing upon the record (People v Keen, 94 NY2d 533, 539 [2000]). The practical effect of the majority’s position is to require a trial court to deliver a missing witness instruction even though none is requested and even where, as here, the defense maintains that no other person was in a position to witness the drug transaction for which the defendant was convicted.
Defendant’s attempt to manufacture an identification issue out of the failure to offer corroborative testimony is unavailing. Defendant, attired in distinctive clothing, was observed by an *222experienced police officer from close proximity in broad daylight. No one of similar description was present at the location. Defendant was promptly apprehended in the immediate vicinity of the drug sale and positively identified as the seller by the purchasing undercover officer, both at the scene and at trial. The People offered a Polaroid photograph of defendant wearing his telltale flowered cap. Not surprisingly, defendant does not challenge the sufficiency or weight of the evidence against him. It is submitted that any purported error in the court’s charge is harmless in light of the overwhelming evidence of guilt.
Nothing in the record indicates that, if called, the ghost officer or officers had any relevant testimony to offer. This was the position of trial counsel to bolster defendant’s claim of mistaken identification. Trial counsel’s own cross-examination did not establish that a ghost was in a position to observe the sale so as to testify regarding identification, and his own summation, in fact, disparaged the ability of any other witness to maintain a clear sight line.
Nardelli, J.P, and Sullivan, J., concur with Friedman, J.; Tom and Ellerin, JJ., dissent in a separate opinion by Tom, J.
Judgment, Supreme Court, New York County, rendered March 20, 2000, reversed, on the law, and the matter remanded for a new trial.