People v. Coleman , 665 N.Y.S.2d 196 ( 1997 )

—Judgment unanimously affirmed. Memorandum: County Court properly denied defendant’s request for a missing witness charge. The record establishes that, when defendant provided drugs to an undercover police informant, there were three individuals standing nearby. The informant testified that those individuals “were part of the transaction” and that they were friendly with defendant. Under those circumstances, defendant did not make the requisite prima facie showing that the missing witnesses could be expected to provide testimony favorable to the prosecution (see, People v Macana, 84 NY2d 173, 177; People v Panzardi, 213 AD2d 1067, lv denied 85 NY2d 978). We further conclude that defendant’s sentence is neither unduly harsh nor severe. (Appeal from Judgment of Niagara County Court, Fricano, J.—Criminal Sale Controlled Substance, 3rd Degree.) Present—Green, J. P., Lawton, Hayes, Callahan and Fallon, JJ.