dissents and votes to affirm the judgment appealed from, with the following memorandum: Upon my view of the evidence, the defendant was not entitled to a missing witness charge with respect to the undercover officer who drove the private, nondepartmental vehicle to the scene of the drug transaction and who did not testify at trial. In order for the trial court to have granted the defense counsel’s application for a missing witness charge, it would have been necessary to engage in speculation well beyond the parameters of the evidence adduced at trial. The record merely revealed that the testifying undercover officer was approached by the defendant on the sidewalk near the passenger side of the officers’ vehicle while the nontestifying officer remained seated behind the steering wheel. The defense counsel failed to ascertain, in the course of his cross-examination of the undercover officer who made the drug purchase, such information as the distance the defendant had allegedly been from the officers’ vehicle, precisely where he had stood in relation to that vehicle or even whether the nontestifying officer had been looking in the general direction of the sale. While, as the majority has noted, he would "presumably, have been motivated to pay attention to the events transpiring on the sidewalk”, there was no evidence whatsoever that this was in fact the case. Stated succinctly, inasmuch as the defendant failed to make a prima facie showing that the undercover officer who remained in the nondepartmental vehicle during the entire transaction observed any part of the drug sale and was, therefore, knowledgeable about a pending material issue, the trial court properly denied the defendant’s request for a missing witness charge (see, People v Gonzalez, 68 NY2d 424, 427-428; People v King, 128 AD2d 805, 806, lv denied 70 NY2d 649).
*509The instant case is patently distinguishable from People v Gonzalez (supra, at 426), wherein the missing witness’s clear observation of the defendant who was known to him was unequivocally referred to by the complainant in the course of her trial testimony. Additionally, the defendant’s reliance upon People v Wright (41 NY2d 172) and People v Brown (34 NY2d 658) is likewise misplaced. In each of those cases, there existed ample evidence that the nontestifying police officer had had sufficient opportunity to observe first hand and had acted jointly with his partner who had been called to testify. In People v Wright (supra, at 176), the court made a specific finding that the testimony of the nontestifying police officer, who was physically present in the courtroom, would not have been merely cumulative or trivial in view of the impeachment and the uncertainties developed on the cross-examination of his partner who did testify. No such circumstances were present in the instant case.
It is well settled that even where the party requesting a missing witness charge has successfully established prima facie that the witness is knowledgeable and can be expected to testify favorably on behalf of the party who did not call him, the request is properly denied where the party opposing the charge demonstrates, inter alia, that the witness’s testimony would be merely cumulative (see, People v Gonzalez, supra, at 427-428; People v Almodovar, 62 NY2d 126, 132-133; People v Band, 125 AD2d 683, 685). On the basis of the evidence adduced it is reasonable to infer only that the nontestifying officer could have corroborated the fact that he drove the nondepartmental vehicle to the site of the drug transaction and that he saw the defendant near his vehicle. Such testimony would merely have served to corroborate his partner’s testimony to the extent that the partner had been in close proximity to the defendant. Any suggestion that the nontestifying undercover officer acted jointly with his partner in the actual drug sale or that his testimony could have resolved the disparities between his partner’s version of the facts and that of the defendant is entirely speculative and unsupported by the record. To reverse a judgment of conviction and order a new trial on such a speculative ground does not, in my view, further the ends of justice.
Given the overwhelming evidence of the defendant’s guilt provided by the facts that he matched precisely the detailed description provided by the undercover officer who made the purchase, that a photograph of the defendant taken shortly after his arrest also fit that description and that he acted *510suspiciously and attempted to flee when the police, after identifying themselves, ordered him to stop, I cannot adhere to the majority’s conclusion that the trial court’s refusal to grant the defendant’s request for a missing witness charge deprived him of a fair trial.
The defendant’s remaining contentions are either unpreserved for our review or without merit, including the contention with respect to the trial court’s marshaling of the evidence which, as the majority has conceded, would not alone warrant reversal. Accordingly, I vote to affirm the judgment appealed from.