Opinion
April 15, 1994
Appeal from the Onondaga County Court, Auser, J.
Present — Green, J.P., Pine, Fallon, Callahan and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: County Court properly denied defendant's request for a missing witness charge. Although it was evident from the prosecutor's voir dire and opening statement that the victim would not testify, defendant did not request a missing witness charge until both sides had rested. Defendant's request was, therefore, untimely (see, People v Gonzalez, 68 N.Y.2d 424, 427-428; People v Peterson, 188 A.D.2d 1002, 1003, lv denied 81 N.Y.2d 891).
We reject the contention that defendant was deprived of his right of confrontation when a police officer was permitted to testify to the victim's out-of-court identification of defendant as the victim's assailant. That testimony was properly admitted under the excited utterance exception to the hearsay rule (see, People v Brown, 70 N.Y.2d 513; People v Jones, 175 A.D.2d 662, lv denied 79 N.Y.2d 828).
Although a side-bar conference with a prospective juror was conducted in defendant's absence, that prospective juror was excused. Thus, reversal on that ground is not required (see, People v Keeton, 203 A.D.2d 899 [decided herewith]; People v Arnold, 201 A.D.2d 965; People v Johnson, 201 A.D.2d 965).
Defendant was not deprived of the right to be present at the Sandoval hearing. The record reveals that the Sandoval hearing, as well as the Wade and Huntley hearings, was conducted in the courtroom and that defendant was present "throughout the uninterrupted proceedings" (People v Sanders, 199 A.D.2d 1011, 1012).
Finally, we conclude that the court's charge on reasonable doubt, viewed in its entirety, conveyed the proper standard to the jury (see, People v Stokes, 198 A.D.2d 847).