Opinion
July 22, 1991
Appeal from the Supreme Court, Kings County (Lombardo, J.).
Ordered that the judgment is affirmed.
The defendant's challenge to the propriety of the trial court's charge on the issue of evaluating the credibility of two witnesses, one of whom had entered into a cooperation agreement with the District Attorney's Office, has not been preserved for appellate review due to the defendant's failure to object to that portion of the charge (see, CPL 470.05; People v Nuccie, 57 N.Y.2d 818). In any event, we reject the defendant's argument that he was deprived of a fair trial by the trial court's instructions regarding the witnesses' credibility. The defense counsel thoroughly examined the possible partiality of the two witnesses on cross-examination. Moreover, during that portion of its charge concerning interested witnesses, the court noted that one of the witnesses had entered into a cooperation agreement with the District Attorney's Office. Although the trial court did not specifically charge the jury that, "in assessing credibility, the interest, bias, prejudice and prior convictions of the witnesses, as well as any benefit conferred upon them, should [be] considered" (People v Sherman, 156 A.D.2d 889, 891; see, People v Jackson, 74 N.Y.2d 787, 790; see also, 1 CJI[NY] 7.19, at 303), the trial court's failure to do so, under the circumstances of this case, does not warrant reversal (see, People v Sherman, supra; People v Dewindt, 156 A.D.2d 706).
We find that the trial court properly refused to give a missing witness charge with respect to the failure of the decedent's wife to testify. The defendant did not request a missing witness charge until after both sides had rested. Since the defendant was on notice that the People would not be calling the decedent's wife as a witness, the defendant's request for a missing witness charge was untimely (see, People v Gonzalez, 68 N.Y.2d 424; People v Bradley, 160 A.D.2d 808; People v Watson, 134 A.D.2d 729). In any event, the testimony of the decedent's wife would have been cumulative (see, People v Gonzalez, supra). Thompson, J.P., Eiber, Balletta and Ritter, JJ., concur.