Opinion
February 2, 1998
Appeal from the County Court, Westchester County (Sise, J.).
Ordered that the judgment is affirmed.
The defendant contends that the trial court improperly denied his request for a missing witness charge. This contention is without merit, as the defendant waited until both sides had rested at the close of evidence to request the charge, and thus his request was untimely ( see, People v. Gonzalez, 68 N.Y.2d 424, 428; People v. Asphill, 208 A.D.2d 550; People v. Woodford, 200 A.D.2d 644; People v. Catoe, 181 A.D.2d 905). In any event, the defendant failed to make a prima facie showing that the missing witness was under the People's control and that the witness's testimony would not be cumulative ( see, People v. Duval, 172 A.D.2d 248, 249).
The defendant's sentence is not excessive ( see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contention is without merit ( see, People v. Reynoso, 73 N.Y.2d 816, 819; People v. Walker, 223 A.D.2d 414, 415).
Rosenblatt, J. P., Ritter, Altman and Florio, JJ., concur.