People v. McCloud

305 A.D.2d 428, 758 N.Y.S.2d 516

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered June 9, 2000, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the Supreme Court erred in refusing to give a missing witness charge with respect to a police detective to whom the defendant made a statement. Because the defendant waited until both sides had rested to request his charge, the request was untimely and thus, properly denied (see People v Gonzalez, 68 NY2d 424 [1986]; People v Catoe, 181 AD2d 905 [1992]).

Contrary to the defendant’s contention, the determination as to whether to reopen a case for further testimony rests within the sound discretion of the trial court (see People v Ventura, 35 NY2d 654 [1974]; People v Aldridge, 247 AD2d 545 [1998]; People v Fama, 212 AD2d 542 [1995]). Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the defendant’s application to reopen the case.

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contentions are without merit. Florio, J.P., H. Miller, Adams and Rivera, JJ., concur.