Opinion
November 19, 1997
(Appeal from Judgment of Supreme Court, Onondaga County, Brunetti, J. — Burglary, 2nd Degree.)
Present — Green, J. P., Lawton, Hayes, Callahan and Fallon, JJ. [As amended by unpublished order entered Mar. 13, 1998.]
Judgment unanimously affirmed. Memorandum: We conclude that defendant's conviction of burglary in the second degree (Penal Law § 140.25) is supported by legally sufficient evidence and is not against the weight of the evidence ( see, People v Bleakley, 69 N.Y.2d 490, 495). The record establishes that defendant received meaningful representation ( see, People v Baldi, 54 N.Y.2d 137, 146-147). We further conclude that Supreme Court properly denied defendant's request for a missing witness charge. Because that request was made after the close of the proof, it was untimely ( see, People v. Asphill, 208 A.D.2d 550, lv denied 88 N.Y.2d 933; People v. Castro-Garcia, 203 A.D.2d 899, lv denied 83 N.Y.2d 965; People v. Catoe, 181 A.D.2d 905, lv denied 79 N.Y.2d 1047). In any event, the request was properly denied because the testimony of the uncalled witness would not have substantiated defense counsel's theory that defendant did not enter the home and was not otherwise relevant or material ( see, People v. Gonzalez, 68 N.Y.2d 424, 427-428).
We have considered defendant's remaining contentions including those raised in the pro se supplemental brief, and conclude that they are without merit.