People v. Clay , 597 N.Y.S.2d 172 ( 1993 )

Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Brill, J.), rendered November 26, 1991, convicting him of criminal sale of a controlled substance in the third degree under Indictment No. 2964/91, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, also rendered November 26, 1991, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of attempted criminal sale of a controlled substance in the third degree under S.C.I. No. 13073/90.

Ordered that the judgment and amended judgment are affirmed.

The defendant contends that the trial court erred in refusing to grant a missing witness charge with regard to an undercover officer’s so-called "ghost”, who was assigned to witness the sale. Although the defendant made a prima facie showing that the uncalled officer would have had knowledge about a material issue upon which evidence was already in the case and that the witness would naturally be expected to provide testimony favorable to the party who had not called him (see, People v Kitching, 78 NY2d 532; People v Gonzalez, 68 NY2d 424), the court failed to give a missing witness charge. However, the error was harmless in light of the overwhelming evidence of the defendant’s guilt, there being no significant probability that a contrary verdict would have resulted had the charge been given (see, People v Fields, 76 NY2d 761; People v Astado, 173 AD2d 834).

In view of our determination, there is no basis for vacatur of the plea under S.C.I. No. 13073/90 (cf., People v Clark, 45 NY2d 432). Sullivan, J. P., Lawrence, Eiber and Santucci, JJ., concur.