concurs in a memorandum as follows: I concur in the result reached by the majority. However, I do not agree with the view expressed by my colleagues, as dicta, that in a criminal case, where a party fails to call a witness under the control of the party, the court, in delivering a missing witness charge, may either adhere to the view expressed by the Appellate Division, Fourth Department, in People v Terry (83 AD2d 491) or the recommended jury instruction adopted by the Committee on Criminal Jury Instructions of the State of New York (1 CJI [NY] 8.55 p 452).
In my view, the appropriate charge is that presented by the Committee on Criminal Jury Instructions, which recommends instructing the jury that they may "infer”, if proper, that the testimony of the uncalled witness "would not have supported the testimony of the defendant * * * on that issue.” (Ibid.) I believe the alternative charge suggested by the Fourth Department in People v Terry (supra, at p 496), "that failure to call a witness is something the jury may ' "consider” ’ ” is insufficient in that it fails to instruct the jury adequately as to the law in terms of the adverse inference which may be drawn by them.
Moreover, this was a nonjury trial, where the Trial Justice adopted "the strongest adverse inference” standard of People v Glenn (68 AD2d 626, revd on other grounds 52 NY2d 880), a charge which we now agree is inappropriate in a criminal jury trial. I fail to perceive the basis for the majority’s placing the imprimatur of approval on these two alternative instructions, neither of which had been employed in this nonjury case. This is especially so where the issue has not been addressed by the parties and has no direct bearing upon our disposition of the appeal. To the extent the majority seeks to provide guidance to the Bench and Bar, this is not accomplished by a determination which recommends the use of either of two dissimilar jury charges.