Opinion
November 25, 1997
Appeal from the Supreme Court, New York County (Bruce Allen, J.).
Defendant's request for a missing witness charge was properly denied. Although defendant was aware prior to the commencement of testimony that the People did not intend to call the alleged missing witness, defendant waited until both sides had rested to make his request. Under these circumstances, the request was properly denied as untimely ( People v Ramirez, 221 A.D.2d 178, lv denied 87 N.Y.2d 1023). In any event, the People established that the witness "had become unavailable by the time of the trial despite reasonable efforts to locate him" ( People v. Jenkins, 213 A.D.2d 279, 280, lv denied 85 N.Y.2d 974).
Defendant's claim that he was prejudiced by the court's submission to the jury of the completed crime of robbery in the second degree, notwithstanding his ultimate acquittal of that charge, is without merit ( People v. Brown, 83 N.Y.2d 791, 794; People v. Cruzado, 239 A.D.2d 160).
Concur — Murphy, P.J., Sullivan, Wallach, Tom and Andrias, JJ.