People v. Capella

Appeal by defendant from a judgment of the Supreme Court, Kings County (Deeley, J.), rendered November 17, 1983, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

*167Judgment affirmed.

Defendant’s claim that the trial court erred by giving an ambiguous missing witness charge concerning Miguel Martinez is unpreserved for appellate review, as the court granted defendant’s request for such a charge and defendant failed to take exception to the charge as given (People v Whalen, 59 NY2d 273). We have considered defendant’s other contentions and find them to be lacking in merit. Thompson, J. P., Brown, Weinstein and Kunzeman, JJ., concur.