Defendant appeals from a judgment of the Criminal Court, New York County, rendered May 28, 2003 after a jury trial (A. Kirke Bartley, Jr., J.) convicting him of petit larceny (Penal Law § 155.25), and imposing sentence.

PER CURIAM:

Judgment of conviction rendered May 28, 2003 (A. Kirke Bartley, Jr., J.) affirmed.

The trial court properly denied defendant's request for a missing witness charge with respect to one of the two security guards who observed defendant's conduct at the crime scene, since defendant failed to demonstrate that the nontestifying security guard possessed noncumulative information favorable to defendant (see People v Gonzalez, 68 NY2d 424, 427 [1986]; People v McMurray, 175 AD2d 886, 887 [1991], lv denied 78 NY2d 1128 [1991]). In any event, were we to find any error in the denial of the instruction, we would find it harmless in the circumstances of this case, where defense counsel was permitted to comment in summation on the witness's absence (see People v Douglas, 304 AD2d 458, 459, [2003], lv denied 100 NY2d 580 [2003]). [*2]

This constitutes the decision and order of the court.
Decision Date: December 15, 2004