Opinion
Submitted February 4, 2000
March 17, 2000
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Fisher, J.), rendered April 2, 1997, convicting him of murder in the second degree and burglary in the second degree, upon a jury verdict, and imposing sentence.
Arza Feldman, Roslyn, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Matthew Schechter of counsel), for respondent.
WILLIAM C. THOMPSON, J.P., SONDRA MILLER, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see, CPL 470.05 Crim. Proc.[2]; People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant' s guilt beyond a reasonable doubt.
The defendant further contends that the trial court erred in refusing to give a missing witness charge in regard to an alleged fourth participant in the burglary at issue. Because the defendant waited until both sides had rested before requesting the charge, the request was untimely and was thus properly denied (see, People v. Gonzalez, 68 N.Y.2d 424; People v. Waldron, 154 A.D.2d 635).
THOMPSON, J.P., S. MILLER, FLORIO, and SCHMIDT, JJ., concur.