The People of the State of New York, Respondent, v. James Williams, Appellant

The People of the State of New York, Respondent, v James Williams, Appellant. [MAJORITY] — Appeal by the defendant from a judgment of the Supreme Court, Kings County (O’Brien, J.), rendered September 20, 1984, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence. Judgment affirmed. The trial court correctly refused to grant a missing witness charge with respect to Darryl Myrick inasmuch as there was no evidence that Mr. Myrick could testify as to a material fact or that he was under the People’s control (see, People v Watkins, 67 AD2d 717). During summation, the prosecutor improperly commented on the defendant’s and his codefendants’ failure to give the police an exculpatory explanation of their activity. However, the court gave extensive curative instructions, with the defendant’s agreement. The instructions adequately cured any possible prejudice to the defendant. The defendant’s remaining contentions have been considered and found to be without merit. Mangano, J. P., Brown, Weinstein and Spatt, JJ., concur.