People v. Miller , 689 N.Y.S.2d 886 ( 1999 )

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]). County Court did not abuse its discretion in permitting the People to reopen their case after the close of proof to call the confidential informant as a witness. Although defendant knew before the People rested that the People did not intend to call the informant as a witness, defendant did not request production of the informant and waited until the charge conference to request a missing witness instruction (see, People v Parilla, 158 AD2d 556, 557; see also, People v Gonzalez, 68 NY2d 424, 428; People v Randall, 177 AD2d 661, 661-662, lv denied 79 NY2d 1053). Defendant’s remaining contentions are not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal from Judgment of Cayuga County Court, Corning, J. — Criminal Sale Controlled Substance, 3rd Degree.) Present — Green, J. P., Pine, Wisner, Scudder and Callahan, JJ.