
    The People of the State of New York, Respondent, v Scott McLean, Appellant.
    [793 NYS2d 855]
   Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), rendered January 16, 2004. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated as a felony (two counts), aggravated unlicensed operation of a motor vehicle in the first degree and unauthorized use of a vehicle in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of driving while intoxicated as a class D felony (Vehicle and Traffic Law § 1192 [2], [3]; § 1193 [1] [c] [ii]), aggravated unlicensed operation of a motor vehicle in the first degree (§ 511 [3] [a]) and unauthorized use of a vehicle in the third degree (Penal Law § 165.05 [1]). Contrary to the contention of defendant, the evidence at the suppression hearing is sufficient to establish that his arrest was supported by probable cause (see People v O’Hanlon, 5 AD3d 1012 [2004], lv denied 3 NY3d 645 [2004]; People v Tittensor, 244 AD2d 784 [1997]). County Court properly admitted in evidence recordings of the 13 calls to 911 made by defendant prior to his arrest (see People v Knight, 280 AD2d 937, 938-939 [2001], lv denied 96 NY2d 864 [2001]). The court properly denied the request of defendant for a missing witness charge with respect to one of the passengers in the vehicle because there is no indication that the passenger was under the People’s control (see People v Farrow, 159 AD2d 376 [1990], lv denied 76 NY2d 787 [1990]). We reject defendant’s contention that the verdict is against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]). Finally, the sentence is not unduly harsh or severe. Present— Pigott, Jr., P.J., Green, Kehoe, Martoche and Hayes, JJ.  