| People v Ortiz |
| 2007 NY Slip Op 07472 [44 AD3d 364] |
| October 9, 2007 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JorgeOrtiz, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered April 7, 2005convicting defendant, after a jury trial, of rape in the first degree and two counts of course ofsexual conduct against a child in the first degree, and sentencing him to concurrent terms of 15years, unanimously affirmed.
The court properly denied defendant's request for a missing witness charge as to the victim'sbrother, since defendant did not establish that he was in a position to see or hear any of the eventsat issue, and thus to provide material testimony as to whether or not they occurred (see Peoplev Dianda, 70 NY2d 894 [1987]). Moreover, after unsuccessfully requesting a missingwitness instruction, defense counsel interviewed the witness, chose not to call him, and made astatement to the court that effectively conceded that the witness could not supply any materialtestimony (see People v Brownlee, 199 AD2d 520 [1993]), lv denied 83 NY2d869 [1994]). Defendant's claim that the brother's testimony was material because he was aprompt outcry witness is unpreserved and we decline to review it in the interest of justice. Werewe to review it, we would find it without merit. Concur—Lippman, P.J., Tom, Marlow,Gonzalez and Malone, JJ.