People v Simon
2004 NY Slip Op 03169 [6 AD3d 733]
April 26, 2004
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 30, 2004

The People of the State of New York, Respondent,
Michael Simon, Appellant.


Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered December 20, 2002, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the trial court erred in denying his request for a missing witness charge with respect to a particular uncalled witness. However, since the specific substantive arguments that the defendant presently makes are raised for the first time on appeal, they are unpreserved for appellate review (see CPL 470.05 [2]; People v Zimmerman, 309 AD2d 824 [2003], lv denied 1 NY3d 603 [2004]; People v Porter, 268 AD2d 538 [2000]). In any event, the trial court correctly refused to give the charge. The request for the charge, which was made well after the close of evidence, was untimely (see People v Wright, 2 AD3d 546 [2003], lv denied 1 NY3d 603 [2004]; People v McCloud, 305 AD2d 428 [2003]; People v Carillo, 297 AD2d 288 [2002]; People v Bowman, 270 AD2d 355 [2000]; People v France, 265 AD2d 424 [1999]; cf. People v Gonzalez, 68 NY2d 424 [1986]). Furthermore, since there is no indication that [*2]testimony of the uncalled witness would have been non-cumulative, the charge was not warranted (see People v Almodovar, 62 NY2d 126 [1984]; People v Williams, 294 AD2d 133 [2002]; People v Brown, 202 AD2d 514 [1994]; People v McGill, 163 AD2d 841 [1990], amended 182 AD2d 1143 [1992]).

The defendant's remaining contention is without merit. Smith, J.P., Luciano, Adams and Rivera, JJ., concur.