People v. Asphill , 617 N.Y.S.2d 31 ( 1994 )

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Harkavy, J.), rendered May 13, 1992, convicting him of robbery in the first degree, robbery in the second degree, grand larceny in the fourth degree, unlawful imprisonment in the second degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it is legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict is not against the weight of the evidence (CPL 470.15 [5]).

The defendant contends that the trial court erred in refusing to give a missing witness charge. However, since the defendant waited until both sides had rested at the close of evidence to request the charge, his request was untimely and, thus, properly denied (see, People v Gonzalez, 68 NY2d 424; People v Woodford, 200 AD2d 644; People v Catoe, 181 AD2d 905; People v Randall, 177 AD2d 661). Sullivan, J. P., Santucci, Joy and Krausman, JJ., concur.