Opinion
November 19, 1992
Appeal from the Supreme Court, Bronx County (David Stadtmauer, J.).
The trial court did not abuse its discretion in refusing to give a missing witness charge with respect to the victim's 4 1/2 year old son on the ground that, assuming the child was competent to testify, he "could not possibly engage in the sophisticated reasoning process required to draw any reasonable inference with respect to the issue of consent to sexual activity under the circumstances presented in this case." A missing witness charge should be given only where a witness is knowledgeable about a material issue in the case (People v Gonzalez, 68 N.Y.2d 424, 428). The request to charge was also properly denied since the prosecutor stated that the child would be produced if the defense wished to call him (see, People v Almodovar, 62 N.Y.2d 126, 133). We modify the judgment only because of the lack of proof as to the count of sexual abuse in the first degree in count 7 of the indictment.
Concur — Murphy, P.J., Ellerin, Kupferman, Kassal and Rubin, JJ.