People v. Mitchell , 759 N.Y.S.2d 665 ( 2003 )

—Judgment, Supreme Court, New York County (Marcy Kahn, J.), rendered July 25, 2001, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4V2 to 9 years, unanimously affirmed.

We reject defendant’s various arguments concerning the fact that the arresting officer did not testify as either a prosecution or defense witness. The record establishes that the officer had been injured and was on medical leave, that the court nevertheless signed defendant’s subpoena for his attendance, and that after both sides were unable to obtain his presence they entered into a stipulation as to the allegedly exculpatory information that defendant wished to elicit from this officer. Accordingly, there was no violation of Brady v Maryland (373 US 83 [1963]), or of defendant’s rights to compulsory process and to present a defense. Similarly, the court properly denied defendant’s request for a missing witness charge because the arresting officer was unavailable and because the stipulation rendered his testimony cumulative (see People v Gonzalez, 68 NY2d 424 [1986]). Concur — Andrias, J.P., Saxe, Ellerin, Lerner and Friedman, JJ.