Opinion
2000-08164.
Decided February 9, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered August 14, 2000, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant, and appellant pro se.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Michael J. Balch of counsel), for respondent.
Before: NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO and THOMAS A. ADAMS, JJ.
DECISION ORDER
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 N.Y.2d 532; People v. Gonzalez, 68 N.Y.2d 424). 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 N.Y.2d 872, 874; People v. Martin, 208 A.D.2d 770; People v. Farrow, 187 A.D.2d 667; People v. Brown, 183 A.D.2d 569, 570).
The defendant's remaining contention raised in his supplemental pro se brief is without merit.
SMITH, J.P., GOLDSTEIN, LUCIANO and ADAMS, JJ., concur.