PEOPLE v. KAPLAN

The trial court did not err in denying defendant's request, made only after both sides had rested, for a missing witness charge with respect to two men who were part of the crowd chasing defendant before his arrest (see, People v Rosario, 191 A.D.2d 243, lv denied 81 N.Y.2d 1019).

In any event, defendant failed to establish that the uncalled witnesses were knowledgeable about a material issue upon which evidence was already in the case or that the witnesses would have testified favorably for the People. (People v Gonzalez, 68 N.Y.2d 424, 427.)

Defendant also claims that the court erred in considering his illegal alien status and prior uncharged crimes in imposing sentence. Defendant's former claim is unpreserved for this Court's review. Nevertheless, the claims are without merit as a court is entitled to consider offenses for which a defendant has not been convicted, in addition to immigration offenses. (People v Khan, 146 A.D.2d 806, 807.)

Concur — Murphy, P.J., Sullivan, Ross and Asch, JJ.