Opinion
December 28, 1992
Appeal from the Supreme Court, Queens County (Demakos, J., Appelman, J.).
Ordered that the judgment is affirmed; and it is further,
Ordered that amended judgments are modified, on the law, by deleting therefrom the provisions that the sentences shall run consecutively and substituting therefor provisions that they shall run concurrently with one another but consecutively to the sentence imposed under Indictment No. 11607/88; as so modified, the amended judgments are affirmed.
The defendant's conviction under Indictment No. 11607/88 was based primarily upon the testimony of two officers involved in the so-called "buy-and-bust" operation which led to the defendant's arrest. The trial court properly denied the defendant's request for a missing witness charge based on the failure of a third officer to testify, since the request, made after the close of all of the evidence, was untimely (see, People v Catoe, 181 A.D.2d 905; People v Bradley, 160 A.D.2d 808). In any event, the defendant failed to establish a basis for the charge requested.
Equally untimely was the defendant's objection to the dismissal of a juror after the court learned that a friend of the defendant's had made contact with the juror during a recess. Notwithstanding the trial court's willingness to consider the defendant's objection on the merits, the objection was made after the juror was dismissed, when there was no way for the court to effectively change its ruling (see, CPL 470.05; People v Hopkins, 76 N.Y.2d 872, 873; People v Consolazio, 40 N.Y.2d 446, 455, cert denied 433 U.S. 914).
We further find that it was not improper for the trial court to prospectively exclude the testimony of the defendant's mother as a defense witness, since her testimony would have been collateral to the issues at trial (see, People v O'Connor, 154 A.D.2d 626, 627; People v Rosario, 139 A.D.2d 680). The trial court did not improvidently exercise its discretion in limiting the defendant's cross-examination of the undercover officer (see, People v Boyajian, 148 A.D.2d 740).
We do agree, however, that the defendant was improperly sentenced under Indictment Nos. 170/87 and 5100/87 following the hearing on his violations of probation. By sentencing the defendant to two consecutive indeterminate terms of one to three years imprisonment, the sentencing court exceeded the four-year sentence limit imposed by the defendant's youthful offender status for the crimes in question (see, Penal Law § 60.02; § 70.00 [2], [3]; People v David "H", 70 A.D.2d 205, 207; People v Matthew John G., 60 A.D.2d 919, 920). We therefore modify the sentences imposed by providing that the two terms of one to three years imprisonment shall run concurrently with one another, and consecutively to the sentence imposed under Indictment No. 11607/88 (see, People v Jackson, 106 A.D.2d 93, 97).
We find no merit to the defendant's remaining contention. Thompson, J.P., Bracken, Lawrence and Miller, JJ., concur.