People v. Freeman

Judgment, Supreme Court, Bronx County (Denis Boyle, J.), rendered February 21, 2001, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 25 years to life and 10 years, respectively, unanimously affirmed.

Defendant’s request for a missing witness charge was properly denied both on the ground of untimeliness and on the merits. The request was not made “as soon as practicable” (People v Gonzalez, 68 NY2d 424, 428), where it was made after both sides had finished presenting evidence and the court was about to proceed with summations and charge (see, People v Jordan, 277 AD2d 155, lv denied 96 NY2d 760; People v Johnson, 262 AD2d 243, lv denied 94 NY2d 921). Furthermore, the missing witness, the cousin of an initially uncooperative witness who was not a victim of the crime and who was romantically involved with defendant, was not shown to be under the People’s control for purposes of a missing witness instruction (see, People v Lacy, 166 AD2d 168, lv denied 76 NY2d 987). Moreover, the prospective witness’s testimony would, at best, have been cumulative (see, People v Smith, 279 AD2d 259, lv denied 96 NY2d 835).

We perceive no basis for a reduction of sentence. Concur— Tom, J.P., Mazzarelli, Rosenberger, Ellerin and Rubin, JJ.