People v. Kaplan

Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered July 5, 1990, which convicted defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentenced him, as a second felony offender, to a term of imprisonment of 3Vi to 7 years, unanimously affirmed.

The trial court did not err in denying defendant’s request, made only after both sides had rested, for a missing witness charge with respect to two men who were part of the crowd chasing defendant before his arrest (see, People v Rosario, 191 AD2d 243, lv denied 81 NY2d 1019).

In any event, defendant failed to establish that the uncalled witnesses were knowledgeable about a material issue upon which evidence was already in the case or that the witnesses would have testified favorably for the People. (People v Gonzalez, 68 NY2d 424, 427.)

*83Defendant also claims that the court erred in considering his illegal alien status and prior uncharged crimes in imposing sentence. Defendant’s former claim is unpreserved for this Court’s review. Nevertheless, the claims are without merit as a court is entitled to consider offenses for which a defendant has not been convicted, in addition to immigration offenses. (People v Khan, 146 AD2d 806, 807.) Concur—Murphy, P. J., Sullivan, Ross and Asch, JJ.