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THE PEOPLE, ETC., respondent, v. ANTHONY WRIGHT, appellant.

DECISION ORDER

ORDERED that the judgment is affirmed.

The defendant contends that the trial court erred in refusing to give a missing witness charge. However, since the defendant waited until both sides rested at the close of evidence to request the charge, his request was untimely and thus properly denied ( see People v. Gonzalez, 68 N.Y.2d 424; People v. Asphill, 208 A.D.2d 550; People v. Woodford, 200 A.D.2d 644; People v. Simmons, 188 A.D.2d 668, 669; People v. Catoe, 181 A.D.2d 905).

In any event, the defendant failed to meet his burden of establishing that the undercover police detective was in a position close enough to the transaction to offer material testimony about the seller's identity, and that the detective's testimony would not be cumulative ( see People v. Kitching, 78 N.Y.2d 532; People v. Gonzalez, supra; People v. O'Hara, 253 A.D.2d 560).

SMITH, J.P., McGINITY, LUCIANO and TOWNES, JJ., concur.

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PEOPLE v. WRIGHT
(Dec 8, 2003)