People v Anthony Wright

People v Wright 2003 NY Slip Op 19338 [2 AD3d 546] December 8, 2003 Appellate Division, Second Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

The People of the State of New York, Respondent,
v
Anthony Wright, Appellant.

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nAppeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered March 13, 2002, convicting him of criminal sale of a controlled substance in the third degree and criminal mischief in the fourth degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the trial court erred in refusing to give a missing witness charge. However, since the defendant waited until both sides rested at the close of evidence to request the charge, his request was untimely and thus properly denied (see People v Gonzalez, 68 NY2d 424 [1986]; People v Asphill, 208 AD2d 550 [1994]; People v Woodford, 200 AD2d 644 [1994]; People v Simmons, 188 AD2d 668, 669 [1992]; People v Catoe, 181 AD2d 905 [1992]).

In any event, the defendant failed to meet his burden of establishing that the undercover police detective was in a position close enough to the transaction to offer material testimony about the seller's identity, and that the detective's testimony would not be cumulative (see People v Kitching, 78 NY2d 532 [1991]; People v Gonzalez, supra; People v O'Hara, 253 AD2d 560 [1998]). Smith, J.P., McGinity, Luciano and Townes, JJ., concur.