People v. Whetts

Appeal by the defendant from a judgment of the County Court, Westchester County (Sise, J.), rendered July 26, 1996, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. 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 NY2d 424, 428; People v Asphill, 208 AD2d 550; People v Woodford, 200 AD2d 644; People v Catoe, 181 AD2d 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 AD2d 248, 249). The defendant’s sentence is not excessive (see, People v Suitte, 90 AD2d 80). The defendant’s remaining contention is without merit (see, People v Reynoso, 73 NY2d 816, 819; People v Walker, 223 AD2d 414, 415). Rosenblatt, J. P., Ritter, Altman and Florio, JJ., concur.