People v. Shaw

Appeal by the defendant from a judgment of the County Court, Westchester County (Rosato, J.), rendered September 5, 1984, convicting him of robbery in the second degree, grand larceny in the third degree and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 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 [5]).

*1033The 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 NY2d 424; People v Waldron, 154 AD2d 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.