People v. Martins

—Judgment, Supreme 277 Court, New York County (Bruce Allen, J.), rendered October 11, 1994, convicting defendant, after a jury trial, of attempted robbery in the second degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a persistent violent felony offender, to terms of 8 years to life and time served, respectively, unanimously affirmed. Defendant’s request for a missing witness charge was properly denied. Although defendant was aware prior to the commencement of testimony that the People did not intend to call the alleged missing witness, defendant waited until both sides had rested to make his request. Under these circumstances, the request was properly denied as untimely (People v Ramirez, 221 AD2d 178, lv denied 87 NY2d 1023). In any event, the People established that the witness “had become unavailable by the time of the trial despite reasonable efforts to locate him” (People v Jenkins, 213 AD2d 279, 280, lv denied 85 NY2d 974). Defendant’s claim that he was prejudiced by the court’s submission to the jury of the completed crime of robbery in the second degree, notwithstanding his ultimate acquittal of that charge, is without merit (People v Brown, 83 NY2d 791, 794; People v Cruzado, 239 AD2d 160). Concur—Murphy, P. J., Sullivan, Wallach, Tom and Andrias, JJ.