Opinion
No. 50.
Argued February 17, 2010.
Decided April 1, 2010.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered February 6, 2009. The Appellate Division affirmed a judgment of the Supreme Court, Erie County (Russell E Buscaglia, J.), which had convicted defendant, upon a jury verdict, of attempted murder in the second degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree.
In a prosecution for attempted murder and related crimes, defendant and a codefendant allegedly chased the victim through a store, whereupon defendant shot the victim who fled from the store. On appeal, defendant contended that the trial court abused its discretion in denying his request for a missing witness charge with respect to three individuals who were present in the store before defendant arrived there.
People v Carr, 59 AD3d 945, affirmed.
Legal Aid Bureau of Buffalo, Inc., Buffalo ( Nicholas T. Texido, David C. Schopp and Barbara J. Davies of counsel), for appellant. Frank A. Sedita, III, District Attorney, Buffalo ( Donna A. Milling of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed.
A party seeking a missing witness instruction has the burden of making the request "as soon as practicable" ( People v Gonzalez, 68 NY2d 424, 428). Whether such a request is timely is a question to be decided by the trial court in its discretion, taking into account both when the requesting party knew or should have known that a basis for a missing witness charge existed, and any prejudice that may have been suffered by the other party as a result of the delay.
Here, defendant knew at the outset of the trial that the People did not intend to call three of the victim's relatives who were present at the time of the alleged crime. Supreme Court did not abuse its discretion in holding that defendant's request for a missing witness charge, made more than a week after the People provided their witness list, and after the People had rested their case-in-chief, came too late.
Order affirmed in a memorandum.