People v. Alamo

202 A.D.2d 349, 609 N.Y.S.2d 227, 1994 N.Y. App. Div. LEXIS 3020

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 1994
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Charles Tejada, J.), rendered May 26, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and fifth degrees, and sentencing him, as a second felony offender, to concurrent terms of éVi to 9 years, AVz to 9 years, and 2 to 4 years, respectively, unanimously affirmed.

Defendant possessed all the information on which he based his request for a missing witness charge upon completion of the testimony of the testifying officer, but delayed making the request until after six additional witnesses had testified, the People and defense had rested, and the defense had made an unsuccessful motion to dismiss the indictment. Defendant’s request was therefore properly denied as untimely since it was not made "as soon as practicable” (People v Gonzalez, 68 NY2d 424, 428). In addition, defendant failed to establish that the uncalled backup team officers would have provided material, noncumulative testimony (supra, at 427). Concur — Ellerin, J. P., Kupferman, Ross, Nardelli and Williams, JJ.