People v. Young

4 A.D.3d 441, 771 N.Y.S.2d 364

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 9, 2004
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kangs County (Chambers, J.), rendered August 14, 2000, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The Supreme Court properly denied the defendant’s request for a missing witness charge since he failed to demonstrate that the uncalled witness would be expected to testify in the People’s favor (see People v Kitching, 78 NY2d 532 [1991]; People v Gonzalez, 68 NY2d 424 [1986]). We note that the People cannot raise the issue of untimeliness of the defendant’s request for a missing witness charge for the first time on appeal (see People v Erts, 73 NY2d 872, 874 [1988]; People v Martin, 208 AD2d 770 [1994]; People v Farrow, 187 AD2d 667 [1992]; People v Brown, 183 AD2d 569, 570 [1992]).

The defendant’s remaining contention raised in his supplemental pro se brief is without merit. Smith, J.E, Goldstein, Luciano and Adams, JJ., concur.