Constitutional due process and equal protection claims also must be preserved ( see People v. Russo, 85 N.Y.2d at 874, 626 N.Y.S.2d 51, 649 N.E.2d 1195; People v. Filer, 97 A.D.3d 1095, 1097, 947 N.Y.S.2d 743; People v. Jackson, 71 A.D.3d 1457, 1458, 896 N.Y.S.2d 756; People v. Corker, 67 A.D.3d 926, 926–927, 888 N.Y.S.2d 418; People v. Lashley, 58 A.D.3d 753, 754, 872 N.Y.S.2d 162). Moreover, any claim that the County Court improperly considered the defendant's undocumented immigration status in imposing sentence must likewise be preserved for appellate review ( see People v. Kaplan, 199 A.D.2d 82, 83, 606 N.Y.S.2d 151). Notwithstanding the foregoing, we choose to reach the issues raised by the defendant in the exercise of our interest of justice jurisdiction ( seeCPL 470.15[6][a]; Eujoy Realty Corp. v. Van Wagner Communications, LLC, 22 N.Y.3d 413, 423, 981 N.Y.S.2d 326, 4 N.E.3d 336), as the instant appeal raises a novel issue in New York that is likely to reappear in the future, and provides us with an opportunity to discuss how and to what extent a defendant's undocumented immigration status may be considered by a sentencing court.
range of sentences established by the New York State Legislature for the offense at issue (see Vehicle and Traffic Law § 1193[1] [c][i] ). Objections based upon a sentencing court's improper delegation of discretion or its failure to exercise discretion must be preserved to be reviewable (see People v. Russo, 85 N.Y.2d 872, 874, 626 N.Y.S.2d 51, 649 N.E.2d 1195 ; People v. Gary, 106 A.D.3d 932, 933, 964 N.Y.S.2d 656 ). Constitutional due process and equal protection claims also must be preserved (see People v. Russo, 85 N.Y.2d at 874, 626 N.Y.S.2d 51, 649 N.E.2d 1195 ; People v. Filer, 97 A.D.3d 1095, 1097, 947 N.Y.S.2d 743 ; People v. Jackson, 71 A.D.3d 1457, 1458, 896 N.Y.S.2d 756 ; People v. Corker, 67 A.D.3d 926, 926–927, 888 N.Y.S.2d 418 ; People v. Lashley, 58 A.D.3d 753, 754, 872 N.Y.S.2d 162 ). Moreover, any claim that the County Court improperly considered the defendant's undocumented immigration status in imposing sentence must likewise be preserved for appellate review (see People v. Kaplan, 199 A.D.2d 82, 83, 606 N.Y.S.2d 151 ).Notwithstanding the foregoing, we choose to reach the issues raised by the defendant in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a] ; Eujoy Realty Corp. v. Van Wagner Communications, LLC, 22 N.Y.3d 413, 423, 981 N.Y.S.2d 326, 4 N.E.3d 336 ), as the instant appeal raises a novel issue in New York that is likely to reappear in the future, and provides us with an opportunity to discuss how and to what extent a defendant's undocumented immigration status may be considered by a sentencing court.
We cannot agree with defendant's contention that the District Court's Sandoval ruling was improper. The District Court struck an appropriate balance on the issue of credibility between, on the one hand, the probative value of defendant's prior conviction and his status as an "illegal alien" (see People v Medina, 281 AD2d 563 [2001]; People v Kaplan, 199 AD2d 82 [1993]) and, on the other hand, the potential prejudice to defendant (see People v Hayes, 97 NY2d 203, 207-208 [2002]; People v Barton, 110 AD3d 1089, 1090 [2013]). Contrary to defendant's contention, the " mere fact that the defendant has committed a crime similar to the one for which he is currently being tried does not preclude inquiry into the prior crime' " (People v DaCosta, 31 Misc 3d 142[A], 2011 NY Slip Op 50832[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2011], quoting People v Avila, 69 AD3d 642, 642 [2010]).
The defendant's contention that CPL 270.10 is unconstitutional is unpreserved for appellate review ( see CPL 470.05) and, in any event, is not properly before this Court due to the defendant's failure to notify the Attorney General that he was challenging the constitutionality of a state statute ( see CPLR 1012 [b] [1], [3]; see also People v Troy, 28 AD3d 689, 690). Contrary to the defendant's contention, "[i]t is well established that in reaching a sentencing determination, the court may consider not only prior of fenses for which the defendant was convicted, but even offenses for which he had not been convicted" ( People v Khan, 146 AD2d 806, 807; see People v Gonzalez, 242 AD2d 306, 306-307; People v Kaplan, 199 AD2d 82, 83; see also Williams v New York, 337 US 241). The defendant's remaining contentions are without merit.
We find no merit to defendant's contention that he was prejudiced by County Court's refusal to give a missing witness charge in connection with the People's failure to call Monroe and Fink's sister as witnesses. As to Monroe, although there was some discussion about her testifying during the trial, the defense made no request for a missing witness charge until after the close of the evidence. As a result of this delay, the untimely request was properly denied ( see, People v Gonzalez, 68 NY2d 424, 427-428; People v Kaplan, 199 AD2d 82; People v Rosario, 191 AD2d 243, 244, lv denied 81 NY2d 1019; People v Pendleton, 156 AD2d 725, 726, lv denied 75 NY2d 816; People v Watson, 134 AD2d 729, 730, lv denied 70 NY2d 961). Fink, during her testimony, refused to disclose her sister's identity, stating that she was receiving medical treatment, and as a result County Court struck Fink's testimony regarding the seat belt incident.
The court did not err in denying defendant's application for a missing witness charge with respect to the other individual, Lewis, since she was a potential witness only as to defense witnesses' credibility, not the central issue of who shot complainant ( see, People v. Kitching, 78 N.Y.2d 532, 536). This Court has held that requests for a missing witness charge made after both sides have rested are untimely ( People v. Rosario, 191 A.D.2d 243, lv denied 81 N.Y.2d 1019; People v. Kaplan, 199 A.D.2d 82). The court charged the jury: "If you can give a reason based on the evidence or lack of evidence that is a reasonable doubt. If you can't it is not a reasonable doubt." That charge was not objected to, and in any event, was approved in People v Antommarchi ( 80 N.Y.2d 247, 251-252).
Were we to review we would find that the charge, viewed as a whole, properly informed the jury of the correct rule to apply in arriving at its verdict (People v Canty, 60 N.Y.2d 830, 831-832). Finally, defendant's request for a missing witness charge, made after both sides had presented their evidence and had rested, was untimely (People v Kaplan, 199 A.D.2d 82). In addition, defendant failed to establish that the witness was available to the People and, indeed, conceded that the witness was unavailable (People v Gonzalez, 68 N.Y.2d 424, 427).
Appeal from the Supreme Court, New York County (Franklin Weissberg, J.). The trial court properly denied defendant's request for permission to comment on the People's failure to call a witness to the crime since it was made after both sides had rested and was, therefore, untimely (People v. Alamo, 202 A.D.2d 349, lv denied 84 N.Y.2d 822; People v. Kaplan, 199 A.D.2d 82). Defendant failed to establish that the witness was available and that his testimony would have been material and noncumulative, thus, the court properly precluded defense counsel from such comment (People v. Henry, 197 A.D.2d 383, lv denied 83 N.Y.2d 853). Since defense counsel did not object to the charge provided, defendant's current objection has not been preserved for this Court's review (People v. DeMatteis, 186 A.D.2d 460, 461, lv denied 81 N.Y.2d 969; People v. Taik Kwung, 186 A.D.2d 365, lv denied 81 N.Y.2d 766). Were we to consider the argument in the interest of justice, we would nonetheless affirm since despite its instruction on the "two-inference charge", the court repeatedly instructed the jury on the proper standard of proof (supra).
Appeal from the Supreme Court, New York County (Alfred Kleiman, J.). Defendant's request for a missing witness charge in connection with one of the complainants, which was made after both sides had rested and long after the prosecution had indicated that it would not be calling this out-of-State complainant as a witness, was untimely (People v. Kaplan, 199 A.D.2d 82). In any event defendant failed to demonstrate that such complainant's testimony would have been noncumulative (see, People v. Williams, 162 A.D.2d 309, lv denied 76 N.Y.2d 945). Defendant's claim of ineffective assistance of trial counsel is not supported by a record adequately explaining counsel's strategic choices as might have been developed had an appropriate post-judgment motion been made, and, upon a review of the record presented we cannot conclude that defendant was denied meaningful representation (see, People v. Jones, 55 N.Y.2d 771; People v. Perez, 159 A.D.2d 219, lv denied 76 N.Y.2d 740). Finally, while we agree with defendant that the trial court did on some occasions overstep the bounds of appropriate judicial commentary, many of the challenged comments were made out of the presence of the jury, and the remaining comments and the questioning of witnesses by the court, were harmless if not proper.