People v. Taylor

Judgment, Supreme Court, Bronx County (Barbara Newman, J%), rendered March 11, 1999, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. On the contrary, the evidence was overwhelming. There is no basis upon which to disturb the jury’s determinations concerning credibility and identification. The complainant’s reliable identification of defendant, made shortly after the crime, was corroborated by *158defendant’s flight and the unique earrings stolen from the complainant’s apartment and found on defendant’s person upon his arrest.

Defendant’s request for a missing witness charge was properly denied. Since the request was made after both sides had rested, it was untimely, as the court expressly ruled. The court also correctly denied the request on the ground that, based on the trial evidence, the complainant’s wife could not have been expected to provide material noncumulative testimony (see, People v Gonzalez, 68 NY2d 424, 427).

Defendant’s constitutional challenge to the procedure under which he was sentenced as a persistent felony offender is unpreserved for appellate review and, in any event, is without merit (see, People v Rosen, 96 NY2d 329, cert denied — US —, 151 L Ed 2d 160). Concur — Rosenberger, J. P., Tom, Andrias, Ellerin and Wallach, JJ.