
    The People of the State of New York, Respondent, v Jose Colon, Appellant.
    [741 NYS2d 776]
   —Appeal from a judgment of Supreme Court, Monroe County (Mark, J.), entered November 28, 2000, convicting defendant after a jury trial of assault in the third degree.

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

Memorandum: On appeal from a judgment convicting him following a jury trial of assault in the third degree (Penal Law § 120.00 [2]), defendant contends that Supreme Court erred in failing to charge the jury with respect to the elements of the crimes of disorderly conduct, harassment and driving while intoxicated. We disagree. Pursuant to CPL 300.10 (2), the court’s charge must set forth, inter alia, “the material legal principles applicable to the particular case,” and those crimes were not applicable to the charges against defendant. The court also properly denied defendant’s request for a missing witness charge. The People established that the witness’s testimony would have been cumulative to other evidence (see People v Keen, 94 NY2d 533, 539). Present—Pigott, Jr., P.J., Green, Hurlbutt, Burns and Lawton, JJ.  