People v. Martin

208 A.D.2d 770, 617 N.Y.S.2d 782, 1994 N.Y. App. Div. LEXIS 9908

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cohen, J.), rendered April 20, 1993, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contentions, the trial court did not commit reversible error by denying his request for a "missing witness” charge with respect to the complainant’s nine-year-old sister, who, according to the complainant, was with her not only at the time the complainant was accosted, but also on several other occasions within two weeks of the robbery during which time the complainant had purportedly observed the defendant standing near their house.

We note that the People cannot raise the issue of the untimeliness of the defendant’s request for the first time on appeal (see, People v Erts, 73 NY2d 872, 874; People v Farrow, 187 AD2d 667; People v Brown, 183 AD2d 569, 570). However, upon examination of the record, we find that the defendant failed to make a prima facie showing that the uncalled witness was in a position to have observed the defendant at close range during the relevant times in question, so that she would have had "knowledge” of the defendant’s identity as the perpetrator, a "material issue” in the case (see, People v Kitching, 78 NY2d 532; People v Gonzalez, 68 NY2d 424).

We have examined the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Sullivan, Friedmann and Krausman, JJ., concur.