People v. Castro-Garcia

203 A.D.2d 899, 612 N.Y.S.2d 711, 1994 N.Y. App. Div. LEXIS 4876

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1994
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: County Court properly denied defendant’s request for a missing witness charge. Although it was evident from the prosecutor’s voir dire and opening statement that the victim would not testify, defendant did not request a missing witness charge until both sides had rested. Defendant’s request was, therefore, untimely (see, People v Gonzalez, 68 NY2d 424, 427-428; People v Peterson, 188 AD2d 1002, 1003, lv denied 81 NY2d 891).

We reject the contention that defendant was deprived of his right of confrontation when a police officer was permitted to testify to the victim’s out-of-court identification of defendant as the victim’s assailant. That testimony was properly admitted under the excited utterance exception to the hearsay rule (see, People v Brown, 70 NY2d 513; People v Jones, 175 AD2d 662, lv denied 79 NY2d 828).

Although a side-bar conference with a prospective juror was conducted in defendant’s absence, that prospective juror was excused. Thus, reversal on that ground is not required (see, People v Keeton, 203 AD2d 899 [decided herewith]; People v Arnold, 201 AD2d 965; People v Johnson, 201 AD2d 965).

Defendant was not deprived of the right to be present at the Sandoval hearing. The record reveals that the Sandoval hearing, as well as the Wade and Huntley hearings, was conducted in the courtroom and that defendant was present "throughout the uninterrupted proceedings” (People v Sanders, 199 AD2d 1011, 1012).

Finally, we conclude that the court’s charge on reasonable doubt, viewed in its entirety, conveyed the proper standard to the jury (see, People v Stokes, 198 AD2d 847). (Appeal from Judgment of Onondaga County Court, Auser, J. — Assault, 2nd Degree.) Present — Green, J. P., Pine, Fallon, Callahan and Boehm, JJ.