Opinion
May 19, 1992
Appeal from the Supreme Court, Bronx County (John Collins, J.).
Defense counsel requested a missing witness charge after the conclusion of the People's rebuttal case, prior to summation. The People's contention that the defendant's request was untimely, since it was not made as soon as "practicable," was not raised at trial, and, therefore, is unpreserved for our review (People v. Erts, 73 N.Y.2d 872; People v. Gonzalez, 68 N.Y.2d 424). Moreover, we find that the defendant met his initial burden of demonstrating that the off-duty police officer who apprehended him was knowledgeable about a material issue, would be expected to provide noncumulative testimony favorable to the prosecution, that this witness was available to them, and that the People failed to defeat the request to charge by accounting for the witness' absence or by otherwise demonstrating that the charge would not be appropriate (People v. Kitching, 78 N.Y.2d 532; People v. Gonzalez, supra). However, in light of the overwhelming evidence of the defendant's guilt, the court's denial of the requested charge was harmless error (People v Fields, 76 N.Y.2d 761; People v. Gayle, 162 A.D.2d 261, lv denied 76 N.Y.2d 857; cf., People v. Kitching, supra).
The defendant's contention that he was deprived of a fair trial by so much of the court's charge as equated reasonable doubt with proof to a moral certainty is unpreserved (People v. Creech, 60 N.Y.2d 895; People v. Rosa, 162 A.D.2d 257, lv denied 76 N.Y.2d 943) and without merit (see, People v. Fox, 72 A.D.2d 146). Also unpreserved is the challenge to the court's alibi charge, which in any event clearly instructed the jury that the People had the burden of disproving the alibi defense beyond a reasonable doubt (People v. Jones, 167 A.D.2d 182, lv denied 77 N.Y.2d 907).
Concur — Sullivan, J.P., Milonas, Rosenberger, Ellerin and Kassal, JJ.