People v. Carr

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

A party seeking a missing witness instruction has the burden of making the request “as soon as practicable” (People v Gonzalez, 68 NY2d 424, 428 [1986]). Whether such a request is timely is a question to be decided by the trial court in its discretion, taking into account both when the requesting party knew or should have known that a basis for a missing witness charge existed, and any prejudice that may have been suffered by the other party as a result of the delay.

Here, defendant knew at the outset of the…