Opinion
2002-03007.
Decided December 8, 2003.
Appeal 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.
Lynn W.L. Fahey, (John Gemmill of counsel), for appellant.
Richard A. Brown, District Attorney, (John M. Castellano, Ellen C. Abbot, and Benjamin A. Darche of counsel), for respondent.
Before: DANIEL F. LUCIANO, SANDRA L. TOWNES, JJ.
DECISION ORDER
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 N.Y.2d 424; People v. Asphill, 208 A.D.2d 550; People v. Woodford, 200 A.D.2d 644; People v. Simmons, 188 A.D.2d 668, 669; People v. Catoe, 181 A.D.2d 905).
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 N.Y.2d 532; People v. Gonzalez, supra; People v. O'Hara, 253 A.D.2d 560).
SMITH, J.P., McGINITY, LUCIANO and TOWNES, JJ., concur.