Opinion
2003-00116.
Decided April 26, 2004.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered December 20, 2002, 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.
John R. Lewis, Sleepy Hollow, N.Y., for appellant.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (Daniel M. Reback of counsel), for respondent.
Before: NANCY E. SMITH, J.P., DANIEL F. LUCIANO, THOMAS A. ADAMS, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant contends that the trial court erred in denying his request for a missing witness charge with respect to a particular uncalled witness. However, since the specific substantive arguments that the defendant presently makes are raised for the first time on appeal, they are unpreserved for appellate review ( see CPL 470.05; People v. Zimmerman, 309 A.D.2d 824, lv denied 1 N.Y.3d 603; People v. Porter, 268 A.D.2d 538). In any event, the trial court correctly refused to give the charge. The request for the charge, which was made well after the close of evidence, was untimely ( see People v. Wright, 2 A.D.3d 546, lv denied 1 N.Y.3d 603; People v. McCloud, 305 A.D.2d 428; People v. Carillo, 297 A.D.2d 288; People v. Bowman, 270 A.D.2d 355; People v. France, 265 A.D.2d 424; cf. People v. Gonzalez, 68 N.Y.2d 424). Furthermore, since there is no indication that testimony of the uncalled witness would have been non-cumulative, the charge was not warranted ( see People v. Almodovar, 62 N.Y.2d 126; People v. Williams, 294 A.D.2d 133; People v. Brown, 202 A.D.2d 514; People v. McGill, 163 A.D.2d 841, amended 182 A.D.2d 1143).
The defendant's remaining contention is without merit.
SMITH, J.P., LUCIANO, ADAMS and RIVERA, JJ., concur.