Opinion
October 17, 1994
Appeal from the Supreme Court, Queens County (Cohen, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contentions, the trial court did not commit reversible error by denying his request for a "missing witness" charge with respect to the complainant's nine-year-old sister, who, according to the complainant, was with her not only at the time the complainant was accosted, but also on several other occasions within two weeks of the robbery during which time the complainant had purportedly observed the defendant standing near their house.
We note that the People cannot raise the issue of the untimeliness of the defendant's request for the first time on appeal (see, People v. Erts, 73 N.Y.2d 872, 874; People v Farrow, 187 A.D.2d 667; People v. Brown, 183 A.D.2d 569, 570). However, upon examination of the record, we find that the defendant failed to make a prima facie showing that the uncalled witness was in a position to have observed the defendant at close range during the relevant times in question, so that she would have had "knowledge" of the defendant's identity as the perpetrator, a "material issue" in the case (see, People v. Kitching, 78 N.Y.2d 532; People v. Gonzalez, 68 N.Y.2d 424).
We have examined the defendant's remaining contentions and find them to be without merit. Thompson, J.P., Sullivan, Friedmann and Krausman, JJ., concur.