
    The People of the State of New York, Respondent, v Anthony Nelson, Appellant.
   — Judgment unanimously affirmed. Memorandum: We reject defendant’s contention that County Court erred in refusing his request for a missing witness charge. Defendant failed to meet his burden to establish that the unidentified individual could be expected to give non-cumulative testimony favorable to the People or that the witness was otherwise under their control (see, People v Kitching, 78 NY2d 532, 536; People v Gonzalez, 68 NY2d 424, 427-428; see also, People v Dianda, 70 NY2d 894, rearg denied 71 NY2d 890; People v McKnight, 179 AD2d 996, lv denied 79 NY2d 1004; People v Robinson, 174 AD2d 998, 1000, lv denied 78 NY2d 1014; People v Devonshire, 151 AD2d 1012, lv denied 74 NY2d 846). The issue whether a Gaines error (see, People v Gaines, 74 NY2d 358) was committed in the court’s charge on the burglary counts has not been preserved for our review (see, CPL 470.05 [2]) and we decline to reach it in the interest of justice. Defendant has also failed to preserve for our review his contention that County Court erred in instructing the jury on reasonable doubt and we decline to reach it in the interest of justice. (Appeal from Judgment of Wayne County Court, Strobridge, J. — Burglary, 1st Degree.) Present — Boomer, J. P., Pine, Lawton, Fallon and Doerr, JJ.  