PEOPLE v. MARINE (2006)

Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered December 7, 2004, convicting defendant, after a jury trial, of robbery in the first degree and two counts of robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 12 years, unanimously affirmed.

The court properly denied, as untimely, defendant's request for a missing witness charge, which he made after both sides had rested (see People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986] ).   Defendant became aware, no later than the People's opening statement, that they would not be calling the detective in question.   In addition, the People demonstrated that the uncalled witness was unavailable due to his special assignment outside the United States, as well as that his testimony would have been cumulative to the testimony of the other police witnesses.   To the extent that defendant is raising a constitutional claim, such claim is unpreserved (see People v. Angelo, 88 N.Y.2d 217, 222, 644 N.Y.S.2d 460, 666 N.E.2d 1333 [1996] ), and we decline to review it in the interest of justice.   Were we to review such claim, we would reject it.