People v. Barbati

Appeal by the defendant from a judgment of the County Court, Nassau County (Seybert, J.), rendered January 22, 1993, convicting him of rape in the first degree and sodomy in the first degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [53). The court acted properly in not providing a missing witness charge concerning the People’s failure to call the physician who first examined the complainant. The defendant’s request for such a charge, made after the close of all the evidence, was untimely (see, People v Simmons, 188 AD2d 668, 669). In any event, such a charge was unwarranted (see, People v Gonzalez, 68 NY2d 424). We have examined the defendant’s remaining contentions and find them to be without merit. Miller, J. P., Thompson, Friedmann and Florio, JJ., concur.