People v. Lovall , 730 N.Y.S.2d 472 ( 2001 )

—Judgment unanimously affirmed. Memorandum: The contention of defendant on appeal concerning the alleged error in County Court’s refusal to give a missing witness instruction differs from his contention before County Court, and thus defendant has failed to preserve his present contention for our review (see generally, People v Collins, 277 AD2d 1021, lv denied 96 NY2d 757; People v Miller, 221 AD2d 1001; People v Rodrigues, 154 AD2d 912, lv denied 75 NY2d 775). In any event, the court properly refused to give that instruction because defendant failed to demonstrate that the uncalled witness was knowledgeable about a material issue in the case (see, People v Keen, 94 NY2d 533, 539; People v Lewis, 231 AD2d 919, lv denied 89 NY2d 1096; People v Schiano, 198 AD2d 820, 821, lv denied 82 NY2d 930) or that the witness was under the People’s control (see, People v Keen, supra, at 539). (Appeal from Judgment of Monroe County Court, Bristol, J. — Assault, 2nd Degree.) Present— Pigott, Jr., P. J., Hayes, Hurlbutt, Burns and Gorski, JJ.