Opinion
June 19, 1990
Appeal from the Supreme Court, Bronx County (Elbert C. Hinkson, J.).
The claim that the trial court's denial of the defense request for a missing witness charge at the close of defendant's case deprived him of his due process right to a fair trial was not raised below and is therefore unpreserved for appellate review (see, People v. Thomas, 50 N.Y.2d 467, 473). The request was untimely in that it was made after the defense case, and thereby deprived the prosecution of the opportunity to tailor its trial strategy, under the particular facts of this case, to avoid "`substantial possibilities of surprise'" (People v. Gonzalez, 68 N.Y.2d 424, 428).
At trial, a prosecution witness indicated that the uncalled witness to the shooting, who is a cousin of the decedent, had knowledge of the material issues in this case and could be expected to testify favorably to the prosecution (see, People v Gonzalez, supra, at 430). The People, while arguing that the whereabouts of the witness were unknown, failed to demonstrate that a diligent effort was made to locate him. Furthermore, the People's argument, advanced for the first time on this appeal, that his testimony would be cumulative is unpreserved for our review (People v. Gonzalez, supra, at 430). Nevertheless, any error in failing to deliver a missing witness charge must be considered harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant's guilt provided by the uncontroverted testimony of two prosecution witnesses who were present in the apartment at the time of the attempted robbery and shooting (People v. Walker, 105 A.D.2d 720).
Concur — Kupferman, J.P., Carro, Milonas, Ellerin and Rubin, JJ.