Opinion
April 30, 1990
Appeal from the County Court, Westchester County (Rosato, J.).
Ordered that the judgment is affirmed.
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. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15).
The defendant's failure to promptly request a missing witness charge when he became aware that the complainant was not going to testify warranted the denial of his request (see, People v Gonzalez, 68 N.Y.2d 424; People v. Waldron, 154 A.D.2d 635). Even if his request had been timely, he would not have been entitled to such a charge given the fact that the complainant's absence was as a result of her being ill (see, People v. Gonzalez, supra, at 428).
We have examined the defendant's remaining contention and find it to be without merit. Thompson, J.P., Brown, Kunzeman and Harwood, JJ., concur.