The People of the State of New York, Respondent, v. Carl Brown, Appellant

The People of the State of New York, Respondent, v Carl Brown, Appellant. [723 NYS2d 658] [MAJORITY] —Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered July 8, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 3 to 9 years and, judgment, same court (Michael Obús, J.), rendered August 11, 1999, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him to a concurrent term of 3 to 9 years, unanimously affirmed. Since none of defendant’s specific arguments in opposition to the People’s request for a missing witness charge regarding a potential defense witness were expressly raised or ruled upon at trial, these claims are insufficiently preserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the error, if any, could not have affected the verdict due to the overwhelming evidence of defendant’s guilt. Defendant’s challenge to the phrasing of the charge is unpreserved and we likewise decline to review it in the interest of justice. Were we to review this claim, we would find that while the trial court incorrectly defined “control” in terms of the distinct concept of availability, the error could not have affected the verdict. We perceive no basis for sentence reduction. Concur — Williams, J. P., Tom, Wallach, Buckley and Friedman, JJ.