235 A.D.2d 367
N.Y. App. Div.
1997

Judgment, Supreme Court, Bronx County (Ira Globerman, J.), rendered September 9, 1994, convicting defendant, after a jury trial, of reckless endangerment in the first degree, criminal possession of stolen property in the fourth degree and resisting arrest, and sentencing him, as a second felony offender, to consecutive prison terms of 2 to 4 years, 2 to 4 years and 1 year, unanimously affirmed.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence. There was ample evidence to support the elements of reckless endangerment in the first degree (People v Chrysler, 85 NY2d 413, 415; People v Register, 60 NY2d 270, 277; People v Williams, 158 AD2d 253, lv denied 75 NY2d 971).

Since defendant advanced a different theory of duplicitousness to the trial court, his present contention that the reckless endangerment count is duplicitous is unpreserved for review (People v Fisher, 223 AD2d 493, lv denied 88 NY2d 936) and we decline to review it in the interest of justice. Were we to review it, we would find that the count was not duplicitous since it involved a continuing offense (People v First Meridian Planning Corp., 86 NY2d 608, 615-618; People v Brammer, 189 AD2d 885, 886, lv denied 81 NY2d 967). In any event, "any duplicitousness was alleviated by the manner in which the count [was] submitted to the jury” (People v Fisher, supra, at 494).

Defendant was not entitled to a missing witness charge with respect to a police witness because defendant failed to make a prima facie showing that the witness would have provided material, non-cumulative testimony. Defendant’s speculation that the witness might have provided testimony helpful to the defense did not require a missing witness charge (People v Castro, 200 AD2d 359, lv denied 82 NY2d 923).

We perceive no abuse of sentencing discretion.

Defendant’s remaining arguments are without merit. Concur—Milonas, J. P., Ellerin, Rubin and Mazzarelli, JJ.