Kunzeman, J. P., dissents, and votes to affirm the judgment appealed from, with the following memorandum: Contrary to the position adopted by my learned colleagues of the majority, I am of the view that neither the improper missing witness charge nor the prosecutor’s comments during summation constitutes reversible error.
On March 27, 1987, the defendant and an acquaintance Eddie Rios went to a church dance to pick up Rios’ sister, Sylvia. While waiting for Sylvia Rios to leave the dance, Eddie Rios and the defendant heard three men across the street from the church shout obscenities at some young women who were leaving the dance. When the three men—Angel Acevedo, Antonio Cruz and George Suarez—shouted at Sylvia Rios as she exited the church, an altercation ensued between the two groups. The end result of the altercation was that Cruz was fatally shot.
When the police responded to the scene, Acevedo volunteered that he and Suarez were with Cruz at the time of the shooting. Acevedo and Suarez gave the police officer a description of the perpetrator, which he transmitted over his radio.
According to Acevedo’s version of events, Cruz, at one point during the altercation, stunned the defendant with a hard punch in the face. The defendant thereupon backed up to his car and obtained a gun from one of his friends. The defendant called Cruz a bastard and then shot him from a distance of two or three feet. Cruz, who was unarmed, fell to the ground. The defendant then shot him three more times.
After the shots were fired, Acevedo and Suarez ran away and were pursued by the defendant, who was driving his car. The defendant fired a shot at Acevedo and the latter took cover in a bar, where he called the police. After a few minutes, Acevedo returned to the scene of the crime, where he saw Cruz being taken away in an ambulance.
Acevedo, who viewed the incident under good lighting conditions, recalled that the defendant’s black hair was combed back into a "tail”. The defendant also wore a bell-shaped "Kangol” hat and had a moustache and goatee. He recalled that he identified the defendant in a police lineup.
After the defense rested the trial court, over the defendant’s objection, granted the People’s request for a missing witness charge with respect to Eddie Rios and Sylvia Rios.
*244The law is well settled that the party seeking a missing witness charge establishes a prima facie right to it by showing that the unproduced witness is knowledgeable about a material issue and would be expected to testify favorably to the opposing party (see, People v Gonzalez, 68 NY2d 424, 428; People v Sykes, 151 AD2d 523; People v Bessard, 148 AD2d 49, 53). Once such a showing is made, the party opposing the charge can only avoid it by demonstrating, inter alia, that the witness’s testimony would be immaterial or merely cumulative, or that the witness is unavailable, or is not under that party’s control, such that he or she would not be expected to testify in that party’s favor (see, People v Gonzalez, supra, at 428). Control is a relative concept which is directed to the relationship between the witness and the parties rather than to physical availability (see, People v Vasquez, 76 NY2d 722, 724; People v Gonzalez, supra, at 429).
Eddie Rios and Sylvia Rios were clearly knowledgeable about a material issue in the case inasmuch as both were present when the shooting occurred. However, the record fails to reveal any predilection to testify favorably for the defendant on the part of Eddie Rios, who was merely an acquaintance of the defendant, or on the part of Sylvia Rios, whose relationship to the defendant, if any, was not established at the trial (see, People v Sykes, supra, at 523; People v Mendez, 138 AD2d 637, 638). It is my opinion, however, that the court’s error was harmless in light of the overwhelming evidence of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230, 241-242; People v Wearing, 126 AD2d 586, 587; People v Morales, 126 AD2d 575, 576).
In asserting that the evidence of guilt was not overwhelming, the defense relied upon the testimony of Detective Rodriguez to the effect that the shells which caused the decedent’s death could have come from the gun of a shooter who was standing approximately 18 feet from the defendant’s car. On this basis, the defense urged that either Suarez or Rios, who were behind Rios’ car, must have fired the fatal shots. This argument, however, overlooks Detective Rodriguez’s testimony that the shells could have been moved when kicked or struck by the wheels of a car. The detective conceded that he did not know the precise location where the shells were recovered, and that the report prepared by the crime scene unit showed that the shells were recovered in a location other than that indicated in the diagram which he had prepared on the night of the shooting. Thus, Detective Rodriguez’s testimony does not detract from the strength of the People’s case.
*245With respect to the comments objected to in the prosecutor’s summation, the trial court issued a curative instruction informing the jurors that they could not speculate as to how Eddie or Sylvia Rios might have testified. Thus, any potential prejudice to the defendant emanating from the prosecutor’s summation was eliminated (see, People v Gibbs, 59 NY2d 930; People v Munoz, 157 AD2d 863). Since the defense counsel neither requested further curative instructions nor moved for a mistrial on this ground, any claim regarding the prosecutor’s invitation for the jury to speculate as to what the testimony of Eddie or Sylvia Rios would have been is unpreserved for appellate review (see, People v Medina, 53 NY2d 951; People v Johnson, 154 AD2d 618, 619). In view of what I perceive to be the overwhelming evidence of the defendant’s guilt, our interest of justice jurisdiction should not be exercised in this case.