People v. Hinton

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldstein, J.), rendered May 14, 1991, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court properly denied the defendant’s request for a missing witness charge regarding the People’s failure to call the second arresting officer to testify, since the officer’s testimony would have been cumulative (see, People v Gonzalez, 68 NY2d 424, 428). In any event, the prosecution offered to make the officer available to the defendant, yet the defendant declined to call him as a witness, and the trial court permitted the defense counsel to argue on summation that the jury could draw the negative inference from the People’s failure to call the officer (see, People v Sykes, 151 AD2d 523, 524; see also, People v Mendez, 138 AD2d 637, 638).

The defendant’s remaining contention is unpreserved for appellate review (see, CPL 470.05 [2]; see, People v Starling, 85 NY2d 509; People v Udzinski, 146 AD2d 245). Thompson, J. P., Santucci, Friedmann and Florio, JJ., concur.