Opinion
May 11, 1995
Appeal from the Supreme Court, Bronx County (Lawrence Tonetti, J.).
According great deference to the factfinder's opportunity to view the witnesses, hear the testimony and observe demeanor (People v Bleakley, 69 N.Y.2d 490, 495), we find that the verdict is not against the weight of the evidence. The complainant testified unequivocally that defendant was the man who robbed him at gun point. Defendant stood close to complainant during the robbery that took several minutes and was committed in a well-lit bodega. The complainant was able to describe defendant's getaway vehicle and give police a partial license plate number. The vehicle, with defendant in the driver's seat, was stopped shortly thereafter near the scene of the robbery.
The People were not obligated to present to the Grand Jury testimony of a fellow worker who was unable to identify defendant following the robbery, especially where the defense was aware of his negative identification, did not request his presence, the People tried to locate him and subpoenaed him, but he failed to appear (see, People v Lancaster, 69 N.Y.2d 20, 25-26, citing People v Isla, 96 A.D.2d 789).
Defendant failed to raise either of his claims of error in the jury charge below and they are not preserved for appellate review (CPL 470.05; People v Haskins, 201 A.D.2d 322, lv denied 83 N.Y.2d 853; People v Uraca, 195 A.D.2d 377, lv denied 82 N.Y.2d 728), and we decline to reach them in the interest of justice. Were we to review we would find that the charge, viewed as a whole, properly informed the jury of the correct rule to apply in arriving at its verdict (People v Canty, 60 N.Y.2d 830, 831-832).
Finally, defendant's request for a missing witness charge, made after both sides had presented their evidence and had rested, was untimely (People v Kaplan, 199 A.D.2d 82). In addition, defendant failed to establish that the witness was available to the People and, indeed, conceded that the witness was unavailable (People v Gonzalez, 68 N.Y.2d 424, 427).
Concur — Murphy, P.J., Rubin, Ross, Williams and Tom, JJ.